OPINION

MARIAN BLANK HORN, Judge.

Protestor, MCI Diagnostic Center, LLC (MCI), challenges the cancellation of Solicitation No. 36C25619Q1507 (the Solicitation) for laboratory reference testing, issued by the United States Department of Veterans Affairs (VA) for the Michael E. DeBakey VA Medical Center (MEDVAMC), located in Houston, Texas. Protestor asserts that the Solicitation was canceled after the VA improperly evaluated its proposal, and that protestor would have had a substantial chance of award had the VA not improperly done so. Specifically, protestor disputes the evaluation of its proposal by MEDVAMC's Management and Program Analyst, Peter Basten, who was the individual identified in the record who ultimately requested that the contracting officer cancel the Solicitation. Protestor asserts in its motion for judgment on the administrative record that defendant's "evaluation was arbitrary and capricious, an abuse of discretion, lacking rational basis, or otherwise contrary to the law." Defendant and intervenor, Laboratory Corporation of America (LabCorp), move to dismiss protestor's bid protest for lack of subject-matter jurisdiction, and also cross-move for judgment on the administrative record.

FINDINGS OF FACT

The Existing Blanket Purchase Agreement

The parties have stipulated that the Michael E. DeBakey VA Medical Center (MEDVAMC) is located in Houston, Texas, within VISN 16 [Veteran Integrated Service Network 16], one of the "18 geographically-based" VISNs. The parties further stipulated that "[i]n August 2017, VISN 16 established a blanket purchase agreement (BPA) with LabCorp—under LabCorp's Federal Supply Schedule 66 (Scientific Equipment and Services) contract administered by the General Services Administration—for the provision of reference laboratory testing and analysis services to VHA [Veterans Health Administration] facilities throughout VISN 16." The Blanket Purchase Agreement, BPA No. VA256-17-A-0016 (BPA), states:

(capitalization in original). In addition to Houston, Texas, which is where MEDVAMC is located, the BPA covers VAMC's and outpatient clinics in Alabama, Arkansas, Florida, Louisiana, and Mississippi.

Section I.2 of the BPA, titled: "ORDERS," states:

(capitalization and emphasis in original). Section I.3 of the BPA, titled: "PRICES AND TERMS," states:

(capitalization and emphasis in original). Section I.4 of the BPA, titled: "TERM OF AGREEMENT," states that "[t]his is a single award, firm-fixed price BPA effective August 1, 2017 through July 31, 2018 with four, one-year options and shall be effective for the term of the FSS Contract including additional FSS extensions." (capitalization and emphasis in original).

Attached to the BPA is a table of approximately 1,500 laboratory tests and services, with corresponding codes and prices. Above the table, the BPA states: "Contractor: Laboratory Corporation of America (LabCorp)" and "V16 BPA#: VA256-17-A-0016." In total, the table contains the following ten columns: (1) "Offeror Test Code;" (2) "CPT Code(s);" (3) "Test Name;" (4) "Estimated Annual Volume;" (5) "On FSS contract (indicate Y or N);" (6) "BPA Price/Test;" (7) "Annual BPA Estimated Cost;" (8) "FSS Price/Test;" (9) "Annual FSS Estimated Cost;" and (10) "Cost Savings/Cost Avoidance." (emphasis in original). At the end of the table, the "Total Annual Estimated Cost" is listed as $2,506,640.69. (emphasis in original). The table also provides that the total estimated cost, if the BPA were to be extended until July 31, 2022, would be $12,533,203.45.

As discussed above, the BPA states that "[t]he award of the BPA will not result in a binding contract," and that the "[g]overnment is obligated only to the extent of authorized orders actually issued under the BPA." The parties have stipulated that "[i]n October 2018, pursuant to the VISN 16 BPA, the VA issued a task order to LabCorp to provide reference laboratory testing and analysis services to MEDVAMC for the period [of] October 1, 2018, to September 30, 2019 (FY 2019)." The Standard Form 1449 for the October 2018 Task Order references the BPA contract number, VA256-17-A-0016. The October 2018 Task Order states, under the "ITEM INFORMATION" heading, the following information:

(capitalization and emphasis in original). The October 2018 Task Order does not, however, state which laboratory tests and services are associated with the Task Order, or to which VA Medical Center within VISN 16 the Task Order is directed.

Pre-Solicitation Actions by MEDVAMC

The parties have stipulated that

The IGCE in the administrative record for the Solicitation at issue contains 611 line-items of laboratory test and services, "some of which," the parties stipulated, "overlap with the approximately 1,500 reference laboratory testing and analysis services included in the VISN 16 BPA with LabCorp."2 The IGCE consists of the following seven columns: (1) "Test # &/or Code;" (2) "CPT Code;" (3) "Description/Part Number (Test Name);" (4) "Est. Qty;" (5) "Unit;" (6) "Price;" and (7) "Extended Amount." (emphasis in original). On the last page of the IGCE, under the "Extended Amount" column, it states that the "Total Cost of Base Period" equals $597,830.75, and the "Grand Total Cost of Base + 4 Option Periods" equals $2,989,153.75. (emphasis in original). At the bottom of the last page of the IGCE, Peter Basten, a Management & Program Analyst for the Michael E. DeBakey VA Medical Center, is identified as the point of contact. Also included at the end of the IGCE are the following two comments: "Base year needs to be about $600K," and "[e]ach of the option years should be appoximately [sic] the same cost and usage (minimal fluctuation)." Under the heading labeled: "Check block(s) below that describe the basis for the IGCE," the blocks for "Informal Vendor Quotes," and "Prior Bills of Material" are checked. (capitalization and emphasis in original).

On April 30, 2019, Mr. Basten completed a Market Research Worksheet, which states:

(capitalization in original). The Market Research Worksheet also answers the question: "Has the requirement been purchased by the Department of Veterans Affairs (VA) previously?" in the negative. Under the Section 1.b.(iii) of the Market Research Worksheet, the following instruction was provided to those filling out the Market Research Worksheet:

(capitalization and emphasis in original). Under this instruction, the following information was provided:

(emphasis in original). Section 3.f.(i) of the Market Research Worksheet states: "[B]ased off of research and input from Pathologists on staff at the MEDVAMC Arup Laboratories offered the most comprehensive listing of tests and meet all applicable regulations [sic]."

The parties have stipulated that "[o]n May 1, 2019, Mr. Basten submitted a formal requisition request (No. 580-20-1-426-0007) to VISN 16's network contracting office (NCO 16) to procure anatomic pathology laboratory testing services for MEDVAMC from ARUP." The requisition request in the administrative record, dated May 1, 2019, indicates a total cost of $597,830.75, and lists the vendor as "ARUP LABORATORIES, INC." (capitalization in original).

The parties have stipulated that "[o]n August 9, 2019, the VA issued a [S]ources-[S]ought [N]otice/[R]equest for [I]nformation on the Federal Business Opportunities website, FBO.gov." The Sources Sought Notice/Request for Information No. 36C25619Q1353 in the administrative record (hereinafter, the RFI) lists the point of contact for MEDVAMC as contracting officer Kenny Holestin. The RFI states:

(capitalization in original). The base period and option year costs listed in the above-quoted text are the same as those which were established by the IGCE, discussed above. Attached to the RFI is a table with 611 line-items of laboratory tests and services. The table consists of the following four columns: (1) "Mnemonic;" (2) "Test # &/or Code;" (3) "CPT Code(s);" and (4) "Test Name." (emphasis in original).

Under the heading titled: "REQUESTED RESPONSES," the RFI states:

(capitalization and emphasis in original).

On August 12, 2019, the Senior Contract Manager for protestor MCI, Kathleen Henderson, sent an email to contracting officer Kenny Holestin, regarding the RFI's mention of ARUP Laboratories:

(capitalization in original). That same day, Mr. Holestin responded:

(capitalization in original).

On August 14, 2019, in an email sent by Kathleen Henderson, MCI submitted a response to the RFI. The body of Ms. Henderson's email states:

(capitalization in original). The MCI email from Ms. Henderson further states:

(capitalization in original). The Capability Statement provided in MCI's response to the RFI states:

(capitalization and emphasis in original). Under the "SOCIO-ECONOMIC STATUS" heading in MCI's Capability Statement, MCI's response to the RFI states: "Verified SDVOSB/VOSB," "[c]ertified SBA HUBZone," and "Minority-Owned, Disadvantage [sic] Business Enterprise." (capitalization and emphasis in original). Under the "ACCREDITATIONS & CERTIFICATIONS" heading of the Capability Statement, MCI's response states: "College of American Pathologist (CAP)," "Clinical Laboratory Improvement Amendment (CLIA)," "Clinical and Laboratory Standards Institute (CLSI)," and "COLA Accreditation." (capitalization and emphasis in original). Under the "DIFFERENTIATORS" heading, MCI's response states: "Established, strategic partnerships and local service agreements with vendors and suppliers of T-Spot kits," "ISO 15189-compliant for Clinical Medical Laboratory Services," "[w]eb-based client portal for online test and supply ordering," "[a]dvanced, state of the art lab technology such as handsfree processing and barcode driven protocols," and "[v]olume-based price discounts." (capitalization and emphasis in original). Under the "CURRENT AND PAST PERFORMANCE" heading of the Capability Statement, the response states: "Army National Guard," "Air Force National Guard," "USDA [United States Department of Agriculture] Job Corps," "Mississippi State Department of Human Services," and "Army Corps of Engineers." (capitalization and emphasis in original).

MCI's response to the RFI also includes a page which responds to some of the statements in the RFI under the "REQUESTED RESPONSES" heading, quoted above:

(capitalization and emphasis in original). MCI's response to the RFI also includes a list of laboratory tests and services which the parties have stipulated is "the requested schedule of its [MCI's] estimated prices for each of the anatomic pathology laboratory testing services to be provided under an awarded contact [sic]."

The administrative record also includes an RFI response from another Service-Disabled Veteran-Owned Small Business, [redacted]. The parties have stipulated that "[redacted]'s response identified the company as an SDVOSB . . . and included the requested schedule of its estimated prices for each of the anatomic pathology laboratory testing services to be provided under an awarded contact [sic]." In addition, the parties have stipulated that a "third SDVOSB, [redacted], also timely responded" to the RFI, although [redacted] did not ultimately respond to the Solicitation.

The parties have stipulated that on "August 21, 2019, contracting officer Kenny Holestin prepared a market research report finding that `the rule of two [in 38 U.S.C. § 8127(d)] ha[d] been met,' based on a search of the VA's Vendor Information Pages (VIP) database and the three responses he received from SDVOSBs to the sources-sought notice/request for information." (alterations in original). Under the "Requirement Title" heading, which is the heading for the entire Market Research Report, the Market Research Report states: "ARUP Reference Laboratory Testing 580-20-1-426-0007."

(emphasis in original). Section 5 of the Market Research Report states:

In Section 7, the Market Research Report indicates a "Market Price" of $597,830.75.

On September 4, 2019, contracting officer Kenny Holestin and senior contract manager for MCI, Kathleen Henderson, exchanged email correspondence. Mr. Holestin asked: "If you are awarded a contract for Oct [sic] 1, 2019. [sic] How long before you can start taking our lab tests in for processing?" Ms. Henderson responded: "If awarded prior to October 1, and we could complete our kick-off call, onboarding and supply request, We [sic] would be able to perform laboratory testing October 1, 2019." Mr. Holestin replied: "That's problem [sic] we can't award prior to Oct [sic] 1, because of funding in the new year." Ms. Henderson replied: "[T]hat's not a problem! We can start October 1, 2019. [T]he laboratory is ready to receive samples any day, we just need to overnight shipping label and then start the training and kick-off call." The administrative record contains no further correspondence between Mr. Holestin and Ms. Henderson.

Solicitation No. 36C25619Q1507

The parties have stipulated that "[o]n September 12, 2019, the VA posted Solicitation No. 36C25619Q1507 (Solicitation or RFQ) to FBO.gov, inviting quotations from SDVOSBs to provide anatomic pathology laboratory testing services to MEDVAMC beginning on October 1, 2019." Under the heading titled: "Statement of Work," the Solicitation provides that the following criteria "shall" be met:

At a minimum the test catalog shall include:

(capitalization and emphasis in original).

Attached to the Solicitation is a table with 611 line-items of laboratory tests and services (the Solicitation Table). The parties have stipulated that the Solicitation Table was "adapted from the April 2019 IGCE." Unlike the April 2019 IGCE, however, this table in the Solicitation does not include columns for "Price," or "Extended Amount," although it does contain the same two comments that were included at the bottom of the IGCE, which state: "Base year needs to be about $600K," and "Each of the option years should be appoximately [sic] the same cost and usage (minimal fluctuation)."

Section E.1 of the Solicitation, which incorporates FAR § 52.212-1 (2018), states: "[a]s a minimum, offers must show . . . [a] technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. This may include product literature, or other documents, if necessary." Id. The FAR at § 52.212-1(b)(11) states that "[o]ffers that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration." Id. The FAR at § 52.212-1(g) states:

Id. (emphasis in original).

Section E.2 of the Solicitation, which incorporates FAR § 52.212-2 (2018), states:

The parties further stipulated that "[t]he Solicitation required offerors to submit their quotations to Mr. Holestin by September 20, 2019," and that "[t]he Solicitation identified Reuben A. Zepeda as the contracting officer" for the Solicitation.

MCI's Proposal

The parties have stipulated that "[o]n September 20, 2019, the VA received two responses to the Solicitation: one from [redacted] and another from MCI," and that "[b]oth [redacted] and MCI quoted total pricing below the total pricing projected by the IGCE." As indicated above, the third company which had responded to the RFI, [redacted], did not submit a response to the Solicitation. Under the "INTRODUCTION" heading, MCI's proposal states:

(capitalization and emphasis in original). Under the heading titled: "FACTOR 1 — TECHNICAL," MCI's proposal states:

(capitalization and emphasis in original). Under the heading titled: "SCOPE OF SERVICE," MCI's proposal states:

(capitalization and emphasis in original). Under the heading titled: "CONTRACT STANDARDS FOR LABORATORY TESTING," MCI's proposal states that "MCI will provide Laboratory Testing our [sic] qualified laboratory partners and will continue to actively participate in various study of laboratory testing, with a goal of enhancing clinical patient care." (capitalization and emphasis in original). MCI's proposal also states that "MCI will provide all equipment, materials, and supplies necessary to perform laboratory testing." Under the heading titled: "LICENSING AND ACCREDITATION," MCI's proposal states:

MCI included the following certificates as attachments of our proposal:

(capitalization and emphasis in original). MCI's CLIA Certificate of Accreditation indicates the following lab certifications and associated effective dates:

In total, MCI's proposal includes three tables of laboratory tests and services. One table (the MCI Cost Proposal Table) contains 611 line-items of laboratory tests and services which appear to be the same the laboratory tests and services provided in the Solicitation Table.4 Like the Solicitation Table, the MCI Cost Proposal Table appears to be adapted from the IGCE, in that it states "INDEPENDENT GOVERNMENT COST ESTIMATE" immediately above the table, contains the date, " 4/25/2019" immediately below the table, and includes the same two comments in that were in the IGCE: "Base year needs to be about $600K," and "[e]ach of the option years should be appoximately [sic] the same cost and usage (minimal fluctuation)." The MCI Cost Proposal Table, however, also includes two additional columns in addition to the five which are in the Solicitation Table. The two columns are titled, respectively: "MCI $" and "Total MCI $." (emphasis in original). The values in the "Total MCI $" column are found by multiplying the amount listed in the associated "MCI $" column by the amount listed in the associated "Est. Qty" column. (emphasis in original). The bottom of the MCI Cost Proposal Table lists a "Total Cost of Base Period" equal to $[redacted], and a "Grand Total Cost of Base + 4 Option Periods" equal to $[redacted]. (emphasis in original).

MCI's proposal contains a second table, also consisting of 611 line-items of laboratory tests and services (the PS-TNT Table). In the PS-TNT Table, MCI proposes its "Production Schedule," and "Turnaround Times" for each laboratory test and service listed. In the "Production Schedule" column, it lists, for example, "M-W-Th-F," indicating that that MCI proposes to perform the associated test on any given Monday, Wednesday, Thursday or Friday. In the "Turnaround Times" column, it lists, for example, "5 — 7 Days," to indicate that MCI proposes to provide the results of a given test in such a timeframe.

Under the heading titled: "CAP TEST ACTIVICITY [sic] MENU," MCI's proposal provides a third table which consists of 211 CAP-certified test activities (the CAP Test Activity Menu). (capitalization and emphasis in original). Immediately above the CAP Test Activity Menu, the following information is provided:

The CAP Test Activity Menu includes each listed test activity's respective discipline and subdiscipline. The following nine disciplines provided in the Test Activity Menu are: "Anatomic Pathology," "Chemistry," "Cytopathology," "Hematology," "Histocompatibility Testing," "Immunology," "Microbiology," "Transfusion Medicine/Blood Bank," and Urinalysis." The following twenty subdisciplines provided in the Test Activity Menu are: "Anatomic Pathology Processing," "Autopsy Pathology," "Blood Gases," "Chemistry," "Special Chemistry," "Toxicology," "Cytology Processing," "Cytology Screening," "Coagulation," "Hematology," "HLA Serology," "Immunology," "Bacteriology," "Molecular Microbiology," "Mycobacteriology," "Mycology," "Parasitology," "Virology," "Immunohematology," and "Urinalysis."

Under the heading titled: "LABORATORY REPORTS," MCI's proposal states:

(capitalization and emphasis in original).

MCI's proposal also includes ten sample patient reports. For instance, the sample patient report for the test, Thyroglobulin, provides the following information:

In the attachment titled: "VALIDATION & VERIFICATION REPORT," MCI's proposal includes "Antibody Validation Log[s]" for the same ten tests for which it provided sample test reports. (capitalization and emphasis in original). For example, the Antibody Validation Log for the above test, Thyroglobulin, provides as follows:

Antibody Validation Log

Antibody Name and Clone: Thyroglobulin (2H11+6E1)

Manufacturer and Order ID: Roche 05267820001

In the attachment titled: "PROFICIENCY TESTING SOP [Standard Operating Procedure]," MCI's proposal provides the following:

(capitalization and emphasis in original).

MCI's proposal also includes an Attestation Form, which states:

(capitalization and emphasis in original). MCI's Attestation Form is signed by its Laboratory Director, Sherrita Wilson, M.D., and three "Testing Personnel." (capitalization in original).

Finally, MCI provides information on past performance. MCI's proposal states:

(emphasis in original).

Cancellation of the Solicitation

On September 25, 2019, Peter Basten, the Program Analyst for the Michael E. DeBakey VA Medical Center, who had developed the pre-Solicitation documents, and who, as discussed below, conducted an evaluation of MCI's proposal, sent an email to contracting officer Kenny Holestin, stating: "Please cancel the ARUP laboratory reference contracting packet with a funding document of 580-20-1-426-0007."5 That same day, September 25, 2019, Mr. Holestin emailed MCI's Director of Operations, Colleen Payne, that the "requirement has been canceled."6

Also on September 26, 2019, in an internal email from Peter Basten to Kenny Holestin, Mr. Basten wrote:

Attached to Mr. Basten's email are his evaluations of both MCI's and [redacted]'s proposals. Both evaluations respond in bullet-point form to the requirements in the Statement of Work section of the Solicitation, discussed above. Mr. Basten's evaluation of MCI's proposal states:

(capitalization and emphasis in original). The parties also have stipulated that, similar to the evaluation of MCI's proposal, Mr. Basten's "formal technical evaluation document identified numerous deficiencies in [redacted]'s quotation, spanning multiple requirements expressed in the Solicitation." Although Mr. Basten's evaluation of the two companies' proposals were similar in a number of respects, Mr. Basten also identified deficiencies in [redacted]'s proposal that he did not identify for MCI's poroposal.7

Although contracting officer Kenny Holestin emailed MCI and [redacted] on September 25, 2019 informing them that the Solicitation had been canceled, the Solicitation was not officially canceled until October 10, 2019. On October 10, 2019, an amendment to the Solicitation was completed and issued by Reuben Zepeda, a contracting supervisor for the VA. The subject of the amendment states: "Solicitation 36C25619Q1507 has been CANCELED." (capitalization in original).

Procedural History

After the cancellation, MCI filed the above-captioned bid protest in the United States Court of Federal Claims, challenging the cancellation of Solicitation No. 36C25619Q1507. In its original complaint, protestor argued "[t]he VA has offered no justification, let alone a rational one, for cancelling the Solicitation." The original complaint contained one Count, titled: "The VA's Decision to Cancel the Solicitation was Arbitrary and Capricious, Lacked Rational Basis, and Violated Federal Procurement Regulation and Law." (capitalization and emphasis in original). In Count I, protestor asserted that "MCI submitted pricing was substantially lower than that expressed in the Solicitation's accompanying documents." (emphasis in original). MCI's original complaint also alleged that "[u]pon information and belief, a representative from Quest Diagnostics communicated with the contracting officer responsible for the Solicitation regarding the substance of the Solicitation," and that "the VA cancelled the Solicitation because the VA recognized (1) that setting-aside the Solicitation had disturbed long-standing relationships with the national laboratory-services companies, and/or (2) that MCI's pricing could be beat by non-SDVOSB concerns, should the Solicitation be cancelled and reissued `full and open' rather than restricted."

This court granted a motion to intervene filed by LabCorp. Thereafter, the administrative record was filed. Subsequently, protestor filed an amended complaint. Protestor's amended complaint removed any allegations that could have otherwise been construed as bad faith on the part of the VA. The amended complaint also removed any mention of Quest Diagnostics, Inc. In the amended complaint, protestor asserts that the technical evaluation "was based in technicalities and formalities, and such improper and erroneous evaluations appear to be the ostensible basis for the cancellation. Therefore, the VA's actions were arbitrary and capricious, lacked rational basis, and violated federal procurement regulation and law." In the "CONCLUSION" section of protestor's amended complaint, MCI

respectfully requests that this Court:

(capitalization and emphasis in original).

Based on the schedule agreed to by the parties, protestor filed a motion for judgment on the administrative record, which challenged Mr. Basten's evaluation of protestor MCI's proposal. Defendant and intervenor then each filed a combined motion to dismiss the protest for lack of subject-matter jurisdiction, cross-motion for judgment on the administrative record, and further responses and replies were exchanged.

DISCUSSION

Defendant first moves to dismiss the above-captioned bid protest under Rule 12(b)(1) (2019) of the Rules of the United States Court of Federal Claims (RCFC), asserting that the United States Court of Federal Claims lacks subject-matter jurisdiction to review an objection to the cancellation of a solicitation for which protestor has not alleged that the government has violated any specific statute or regulation. It is well established that "subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived." Arbauqh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). "[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) ("Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." (citing Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W. Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not."). "The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Hymas v. United States, 810 F.3d 1312, 1317 (Fed. Cir. 2016) (explaining that a federal court must satisfy itself of its jurisdiction over the subject-matter before it considers the merits of a case); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) ("An objection to a court's subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506)); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'g and reh'g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App'x 902 (Fed. Cir. 2011). In fact, "[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where . . . neither party has raised this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh'g denied and en banc suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'g and reh'g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006)).

This court has jurisdiction to hear bid protests pursuant to 28 U.S.C. § 1491(b)(1) (2018) of the Tucker Act, which provides that this court has

28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). The Administrative Dispute Resolution Act of 1996 (ADRA), codified at 28 U.S.C. § 1491(b)(1)-(4), amended the Tucker Act to establish a statutory basis for bid protests in the United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330-32 (Fed. Cir. 2001).

Defendant in the above-captioned bid protest asserts that 28 U.S.C. § 1491(b)(1) "confers the Court with only limited jurisdiction to consider a protestor's `object[ions] to' (i) `a solicitation by a Federal agency,' (ii) `a proposed award or the award of a contract,' or (iii) `any alleged violation of a statute or regulation in connection with a procurement or a proposed procurement." (quoting 28 U.S.C. § 1491(b)(1)). Defendant further argues that "[h]ere, MCI challenges only the VA's decision to cancel the solicitation . . . and the protest of a cancellation is not an cobjecti[on] to a solicitation . . . for bids or proposals for a proposed contract or to a proposed award or the award of a contract." (second alteration and second ellipses in original) (emphasis in original) (quoting MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503, 523 (2011) (quoting 28 U.S.C. § 1491(b)(1))). Defendant argues that MCI's protest of the cancellation must meet section 1491(b)(1)'s third prong, an "`alleged violation of a statute or regulation in connection with a procurement or proposed procurement." (quoting 28 U.S.C. § 1491(b)(1)) (citing Tenica & Assocs., LLC v. United States, 123 Fed. Cl. 166, 172-73 (2015); Savantage Fin. Servs., Inc. v. United States, 123 Fed. Cl. 7, 33-34 (2015), aff'd, 688 F. App'x 366 (Fed. Cir. 2016)). Finally, defendant asserts that "[a]lthough MCI variously asserts that the cancellation `violated federal procurement regulation and law,' MCI never identifies what law or regulation the VA allegedly `violated." (internal references omitted). Protestor's filings, including its responsive ones, focus only on Mr. Basten's evaluation of its proposal and are void of any jurisdictional arguments or counter-arguments.

The United States Court of Appeals for the Federal Circuit's ruling in Resource Conservation Group, LLC v. United States discusses this court's bid protest jurisdiction. See Resource Conservation Grp., LLC v. United States, 597 F.3d 1238, 1242-47 (Fed. Cir. 2010). The issue in Resource Conservation Group was whether the United States Court of Federal Claims had jurisdiction to hear a protest of the government's solicitation of bids to lease property owned by the United States Naval Academy. The Federal Circuit found that the protestor lacked jurisdiction under the ADRA because the leasing of land did not constitute a "procurement." Resource Conservation Grp., LLC v. United States, 597 F.3d at 1242 (quoting Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998)). The court also found, however, that the United States Court of Federal Claims had jurisdiction by other means, holding that the enactment of the ADRA did not remove any pre-ADRA-established jurisdiction of the United States Court of Federal Claims. See id. The Federal Circuit looked to the legislative history of the ADRA, concluding that "Congress did not intend to alter or restrict the Court of Federal Claims' existing jurisdiction in cases not covered by the new statute." Resource Conservation Grp., LLC v. United States, 597 F.3d at 1246. This included the United States Court of Federal Claims' pre-ADRA jurisdiction to hear nonprocurement-based protests based on "an implied contract to have the involved bids fairly and honestly considered." Resource Conservation Grp., LLC v. United States, 597 F.3d at 1246 (quoting Southfork Sys., Inc. v. United States, 141 F.3d at 1132).

Defendant in the above-captioned bid protest questions this court's ability hear protestor's challenge of the VA's cancellation of the solicitation to procure laboratory testing and services for the Michael E. DeBakey VA Medical Center. As stated by a Judge of the United States Court of Federal Claims in MORI Associates, Inc. v. United States, 102 Fed. Cl. at 522, "prior to the passage of the ADRA it was settled law that our court had jurisdiction over bid protests seeking to enjoin the arbitrary cancellation of solicitations, as an alleged breach of the implied contract to fairly and honestly consider bids." MORI Assocs., Inc. v. United States, 102 Fed. Cl. at 522 (citing Parcel 49C Ltd. P'ship v. United States, 31 F.3d 1147, 1152-54 (Fed. Cir. 1994)). The court in MORI Associates further held that "the FAR section 1.602-2(b) requirement that contracting officers shall le]nsure that contractors receive impartial, fair and equitable treatment' is, among other things, the codification of the government's duty, previously implicit, to fairly and honestly consider bids." MORI Assocs., Inc. v. United States, 102 Fed. Cl. at 523 (quoting FAR § 1.602-2(b)). The court, therefore, found that it had jurisdiction over an alleged arbitrary cancellation of a procurement under the third prong of 28 U.S.C. § 1491(b)(1) by way of the pre-ADRA established implied contract to fairly and honestly consider bids, which the court found now "expressly resides" in FAR § 1.602-2(b). See MORI Assocs., Inc. v. United States, 102 Fed. Cl. at 524.

As discussed above, the Federal Circuit held in Resource Conservation Group that the ADRA did not abrogate any previously established bid protest jurisdiction enjoyed by this court. Although the Federal Circuit's holding in Resource Conservation Group concerned this court's surviving, post-ADRA jurisdiction to hear nonprocurement-based bid protests, the court reasoned that

Resource Conservation Grp., LLC v. United States, 597 F.3d at 1246; see also Def. Tech., Inc. v. United States, 99 Fed. Cl. 103, 114-15 (2011) (finding that this court had jurisdiction over the cancellation of a procurement solicitation); FFTF Restoration Co., LLC v. United States, 86 Fed. Cl. 226, 236-240 (2009). It is, therefore, consistent with Resource Conservation Group to hold that this court continues to have jurisdiction over alleged arbitrary cancellations of procurement solicitations. Moreover, given this court's pre-ADRA jurisdiction to address procurement cancellation issues, it follows that whether or not protestor alleges the violation of a specific statute or regulation, this court continues to be able to address cancellation issues. See B & B Med. Servs., Inc. v. United States, 114 Fed. Cl. 658, 660 (2014) ("Given our long history of entertaining such [arbitrary procurement cancellation] protests, the Court does not find subject-matter jurisdiction to be absent merely because the particular regulation that is violated by arbitrary cancellation is absent from the complaint."). Defendant's motion to dismiss for lack of subject-matter jurisdiction on the mere grounds that the Solicitation was canceled is denied.

Defendant and intervenor next move to dismiss protestor's complaint, also pursuant to RCFC 12(b)(1), asserting that protestor lacks standing.8 Defendant argues that protestor did not have a substantial chance to be awarded the contract, and, therefore, is not an interested party, because protestor's "response to the solicitation was incomplete, nonresponsive, or otherwise noncompliant with the material terms of the solicitation." As discussed below, defendant's motion to dismiss highlights multiple instances in which MCI's proposal was allegedly incomplete. Included in defendant's argument are allegations that protestor did not demonstrate that protestor is appropriately certified to perform all of the laboratory tests and services required by the Solicitation. All of the instances highlighted by defendant are consistent with Mr. Basten's evaluation of MCI's proposal, which ultimately determined that MCI's proposal was technically unacceptable. As discussed above, however, protestor does not respond to any of defendant or intervenor's jurisdictional arguments, including standing, although in protestor's motion for judgment on the administrative record, protestor does respond to the merits of Mr. Basten's evaluation.

The Tucker Act, as amended by the ADRA, grants the United States Court of Federal Claims "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(a)(1). In order to have standing to sue as an "interested party" under this provision, a disappointed bidder must show that it suffered competitive injury or was "prejudiced" by the alleged error in the procurement process. See Todd Constr., L.P. v. United States, 656 F.3d 1306, 1315 (Fed. Cir. 2011) (To prevail, a bid protester must first "`show that it was prejudiced by a significant error' (i.e., `that but for the error, it would have had a substantial chance of securing the contract)." (quoting Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378, 1380 (Fed. Cir. 2009)); Blue & Gold Fleet, L.P. v. United States, 492 F.3d at 1317; see also Sci. Applications Intl Corp. v. United States, 108 Fed. Cl. 235, 281 (2012); Linc Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 693 (2010) ("In order to establish standing to sue, the plaintiff in a bid protest has always needed to demonstrate that it suffered competitive injury, or `prejudice,' as a result of the allegedly unlawful agency decisions." (citing Rex Serv. Corp. v. United States, 448 F.3d at 1308; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1580-81 (Fed. Cir. 1996); Vulcan Enq'q Co. v. United States, 16 Cl. Ct. 84, 88 (1988); Morgan Bus. Assocs., Inc. v. United States, 223 Ct. Cl. 325, 332 (1980))). In order to establish what one Judge on this court has called "allegational prejudice" for the purposes of standing, the bidder must show that there was a "substantial chance" it would have received the contract award, but for the alleged procurement error. See Linc Gov't Servs., LLC v. United States, 96 Fed. Cl. at 675; Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 550 (2014) ("The government acknowledges that proving prejudice for purposes of standing merely requires "allegational prejudice," as contrasted to prejudice on the merits . . . ."); Bannum, Inc. v. United States, 115 Fed. Cl. 148, 153 (2014); see also Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1331 (Fed. Cir.), reh'g denied (Fed. Cir. 2004); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh'g and reh'g en banc denied (Fed. Cir. 2003); Statistica, Inc. v. Christopher, 102 F.3d at 1581; Archura LLC v. United States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp. of Am. v. United States, 108 Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional issue, this showing of prejudice is a threshold issue. See Corus Grp. PLC. v. Intl Trade Comm'n, 352 F.3d 1351, 1357 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002). "A bidder submitting a nonresponsive bid has no standing to protest an award, because it has no chance of receiving the award." A & D Fire Protection, Inc. v. United States, 72 Fed. Cl. 126, 138 (2006); see also Dismas Charities, Inc. v. United States, 75 Fed. Cl. 59, 61 (2007) ("[A] Final Proposal Revision that does not conform to the solicitation requirements is technically unacceptable and cannot be considered for award . . . ."); CHE Consulting, Inc. v. United States, 47 Fed. Cl. 331, 337 (2000) ("A nonresponsive bidder is not an interested party."); Ryan Co. v. United States, 43 Fed. Cl. 646, 657 (1999) ("[T]he phrase `interested party,' as used in 28 U.S.C. § 1491(b), does not include a bidder, such as [protestor], determined to be nonresponsive, whose only chance of winning a contract is in a resolicitation.").

As explained by the United States Court of Federal Claims in Digitalis Education Solutions, Inc. v. United States:

Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012); see also Am. Fed'n of Gov't Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001), cert. denied, 534 U.S. 113 (2002); Centech Grp., Inc. v. United States, 78 Fed. Cl. 496, 503-504 (2007).

In the context of a pre-award bid protest which challenges the terms of the solicitation, the United States Court of Appeals for the Federal Circuit has determined that to show the requisite "direct economic interest," and, therefore, to be an "interested party" under the Tucker Act, the protestor has to have suffered a "non-trivial competitive injury which can be redressed by judicial relief." See Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (quoting Weeks Marine, Inc. v. United States, 575 F.3d at 1362-63); see also CGI Fed. Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 2018); COMINT Sys. Corp. v. United States, 700 F.3d at 1383 n.7 ("[I]n Weeks Marine this court specifically held that the `non-trivial competitive injury' standard was applicable to `a pre-award protest." (quoting Weeks Marine, Inc. v. United States, 575 F.3d at 1362)) (emphasis in original); MVS USA, Inc. v. United States, 111 Fed. Cl. 639, 647 (2013); Miles Constr., LLC v. United States, 108 Fed. Cl. at 797. This is a lower standard than the "substantial chance" standard used in post-award bid protests, but still requires a "showing of some prejudice." Orion Tech., Inc. v. United States, 704 F.3d at 1348-49 (quoting Weeks Marine, Inc. v. United States, 575 F.3d at 1362) (emphasis in original). This lower standard does not apply, however, to post-proposal, pre-award bid protests that are "not challenging the terms of the solicitation, as was the case in Weeks Marine." Orion Tech., Inc. v. United States, 704 F.3d at 1349. In such cases, the "substantial chance" standard still applies. See id. at 1348-49.

Defendant in the above-captioned bid protest asserts that protestor has not demonstrated that it was CAP certified to perform all of the Solicitation's required tests and services, a deficiency identified in Mr. Basten's evaluation. Mr. Basten included in his evaluation that protestor was "[n]ot CAP Accredited for Molecular Pathology." (capitalization in original). Protestor does not appear to dispute this deficiency in its submissions to the court. Indeed, protestor "concedes that it will require some subcontracting to perform specialized tests." Specifically, in a response to the court's Order for the parties to provide supplemental briefing regarding protestor's CAP accreditations, protestor concedes that protestor "will need to subcontract approximately 74 tests, three of which have the potential of triggering one (or more) of 52 additional tests, totaling 126 line-items" of the 611 line-items in the Solicitation's list of required laboratory tests and services. Protestor further concedes that it cannot perform these tests and services because "MCI is not CAP certified to perform molecular pathology testing."

In protestor's submissions to the court, protestor argues that it intended to use subcontractors to perform the laboratory tests and services it could not personally perform. Protestor's mention of its contemplated use of subcontractors in its proposal, however, is scant. In one section of the proposal, protestor states, confusingly, that "MCI will provide Laboratory Testing our [sic] qualified laboratory partners and will continue to actively participate in various study of laboratory testing, with a goal of enhancing clinical patient care." In addition, protestor's "Attestation Form,"9 which was attached to its proposal, states that MCI's "[p]artner laboratories that we work with have been validated on all of the testing that we currently are not." (emphasis in original). Such is the extent of the proposal's discussion of protestor's intent to rely on subcontractors to fulfill the Solicitation's requirements. Importantly, the proposal is absent of any subcontractor names or subcontractor certifications by CLIA or CAP. MCI's proposal is also silent on how many, and which, laboratory tests or services protestor was intending to subcontract out, at what cost, the intended subcontractor(s) assay schedules and turnaround times—all information required of the offeror by the terms of the Solicitation.

Protestor argues that it was not required to provide any subcontractor information. Although the Solicitation does not explicitly require the submission of subcontractor information, the Statement of Work in the Solicitation instructs that "[a]ppropriate supporting documentation . . . shall be submitted to demonstrate [the] ability to meet or exceed the minimum requirements of this solicitation." At the minimum, the Solicitation required the offeror to demonstrate that it is properly certified to perform, and could perform, all 611 line-items of laboratory tests and services listed in the Solicitation. To that end, the Solicitation required that the offeror produce, among other items, its CLIA Certificate, CAP Certificate and CAP Test Activity Menu. If an offeror could not perform all of the required tests and services, it follows that in order to demonstrate that the "minimum requirements" have been met, the "[a]ppropriate supporting documentation" would necessarily include documentation that the intended subcontractors were properly certified to perform the laboratory tests and services that the offeror could not perform. This would include, among other items, the subcontractor's CLIA Certificate, CAP Certificate, and CAP Test Activity Menu. Protestor concedes that it is not properly certified to perform all of the Solicitation's laboratory tests and services, and that it required the use of subcontractors to do so. Protestor, however, failed to produce relevant information on the subcontractor or subcontractors it intended to use, including their names, CLIA Certificates, CAP Certificates, and CAP Test Activity Menus. Protestor, therefore, failed to provide the "[a]ppropriate supporting documentation" to demonstrate that it could meet the minimum requirements of the Solicitation. Protestor's proposal, therefore, is technically unacceptable.

Protestor's concession, discussed above, that it is "not CAP certified to perform molecular pathology testing," and, therefore, is unable to personally perform 126 of the 611 line-item laboratory tests and services, is also inconsistent with the Solicitation's requirements in subsection (d) of the Statement of Work, which states that the offeror "shall provide a copy of their current CAP Test Activity Menu reflective of all tests they are currently accredited to perform demonstrating laboratory's ability to perform the tests." (emphasis added). Protestor's CAP Test Activity Menu provides numerous other disciplines, including, for example, "Anatomic Pathology," "Cytopathology," and "Immunology," but does not include a discipline in Molecular Pathology. See generally College of American Pathologists, CAP Accreditation Checklists-2019 Edition, available at https://docum ents. cap. org/documents/2019-CAP-accreditation-checklist-sum mary. pdf (last visited Feb. 19, 2020) (providing all CAP Accreditation Checklists for all other disciplines listed in protestor's CAP Test Activity Menu). The court notes that, as indicated in the CAP Accreditation Checklists cited above, CAP indeed provides an accreditation in Molecular Pathology. See id. Protestor's proposal, therefore, did not "demonstrat[e]" protestor's "ability to perform the tests" required of the Solicitation, because protestor's CAP Test Activity Menu did not include Molecular Pathology as a discipline, or otherwise demonstrate it could perform such laboratory tests and services involving Molecular Pathology.10

Defendant next argues that "although the solicitation required MCI to `provide a copy of [its] standard test catalog' as part of its quotation . . . MCI provided only a link to its website . . . a deficiency highlighted by the technical evaluator." (alteration in original) (emphasis in original) (internal references omitted). Subsection (f) of the Solicitation's Statement of Work states that the "[c]ontractor shall provide a copy of their standard test catalog (electronic format preferred) of all the reference laboratory testing services available." Protestor's response to the Solicitation did not include an electronic copy of its standard test catalog. Instead, protestor's response states, under the heading "TEST DIRECTORY:"

(capitalization and emphasis in original). Regarding protestor's standard test catalog, Mr. Basten's evaluation states:

(emphasis in original).

In protestor's submissions to this court, protestor provides no explanation for including only the link to its standard test catalog in its proposal. As an initial matter, the court notes that an offeror's provision of information by website link is not equivalent to submitting such information as a physical or electronic enclosure to a proposal. Unlike a physical submission, a website is a dynamic source of information which can be altered by the posting entity, or, if not secure, by others. Conversely, similar to a physical submission, an electronic submission submitted in PDF form cannot be altered after the offeror submits it to the agency. In this instance, the protestor presumably could have changed the website after the protestor submitted its proposal to the VA, or even after the deadline to submit proposals. Moreover, as this court has previously held, the government is "not required to search for additional information to assist" a protestor if it "fail[s] to include th[e] information in the correct portion of its proposal." IBM Corp. v. United States, 101 Fed. Cl. 746, 758 (2011). As indicated above, however, the court notes that the Solicitation did not explicitly mandate a specific method of transmission for the offeror's standard test catalog, as the Solicitation stated only that electronic format was "preferred."

Defendant next asserts, as did Mr. Basten's evaluation, that protestor's online test catalog was deficient for a number of reasons, including that "[n]ot all RFQ required tests are in the MCI test directory." As discussed above, protestor does not appear to dispute this deficiency. Protestor argues, in response to Mr. Basten's evaluation, that

(footnote omitted) (internal references omitted).

After reviewing what is currently displayed on protestor's online test catalog, it appears that not all of the 611 line-items of laboratory tests and services required by the Solicitation are currently listed. See MCI Diagnostic Center, Laboratory Test Directory, available at http://www.mcidiagnostics.com/test-directory (last visited Feb. 19, 2020). Moreover, as discussed above, protestor's admission that it cannot personally perform 126 of the 611 line-item laboratory tests and services required by the Solicitation, and protestor's failure to provide appropriate subcontractor information, renders protestor's proposal technically unacceptable. Moreover, protestor's argument that "13 C.F.R. [§] 125.6(a)(2)(i) permits MCI to subcontract up to half to the entire contract value — or approximately $[redacted] per year — to non-similarly-situated laboratories," does not respond to the issue of whether, regardless of the number of tests protestor intended to subcontract, the appropriate documentation for subcontractors, including who the subcontractors were going to be and whether those subcontractors had the required capacity and certifications to perform the required laboratory tests or services, was provided in MCI's response to the Solicitation.11 Finally, protestor's argument that Mr. Basten failed to identify which tests protestor could not perform, does not abdicate protestor's burden to demonstrate its ability to meet the published requirements of the Solicitation.

Defendant further asserts that protestor's proposal was deficient for a number of other reasons. These deficiencies highlighted by defendant in its submissions to this court are consistent with Mr. Basten's evaluation of protestor's proposal. For example, Mr. Basten's evaluation states that, for the laboratory tests and services that were listed in protestor's online standard test catalog, "the following required elements are not provided:" "LOINC codes;" "[s]ynonyms;" "Nest methodology;" "[m]aximum turnaround time;" "[a]ssay schedules;" and "[r]eference ranges."

The Solicitation in subsection (f) of the Statement Work states:

At a minimum the test catalog shall include:

(emphasis added).

As discussed above, protestor provided only a link to its website, and did not provide a copy of its standard test catalog with its proposal. Nor has protestor submitted a contemporaneous to its proposal copy of its standard test catalog for the court's current review. The court, therefore, as discussed above, is unable to reliably verify whether, at the time of protestor's submission, protestor's online test catalog included the missing information identified by Mr. Basten and raised by defendant. Moreover, regarding LOINCs,12 the court has found no reference to such codes in what is currently displayed on protestor's online standard test catalog. Therefore, unless protestor removed the LOINCs for each test and service in its online standard test catalog after protestor submitted its proposal, protestor's proposal did not follow the Solicitation's instructions regarding the required LOINCs.

Protestor argues that its proposal "expressly addressed LOINC codes," citing to the portion of its proposal which states that protestor has the "Information Technology Expertise for questions or issues regarding LOINC and test codes, reports and website assistance." (capitalization in original). Protestor's inclusion of this statement in its proposal, however, is not equivalent to providing the LOINC codes for each test in its standard test catalog, as was required by the Solicitation.

Mr. Basten also identified that protestor's online standard test catalog omitted test synonyms.13 The Solicitation states that, "Mt a minimum the test catalog shall include . . . Test Name/Synonyms." The standard test catalog currently displayed on protestor's website includes a name for each laboratory test and service, but only includes synonyms for some of the laboratory tests and services. Protestor argues:

(internal reference omitted).

Defendant argues that, consistent with the United States Court of Appeals for the Federal Circuit's holding in Blue and Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), "MCI has waived its theory that the solicitation made the inclusion of synonyms optional by using a "slash" between the terms "Name" and "Synonyms."" In Blue and Gold Fleet, which was a pre-award bid protest, the Federal Circuit employed the "doctrine of patent ambiguity" in interpreting the terms of a solicitation. See Blue and Gold Fleet, L.P. v. United States, 492 F.3d at 1313; see also Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000) ("A patent ambiguity is present when the contract contains facially inconsistent provisions that would place a reasonable contractor on notice and prompt the contractor to rectify the inconsistency by inquiring of the appropriate parties.") The court in Blue and Gold Fleet found that "Thhe doctrine of patent ambiguity is an exception to the general rule of contra proferentem, which courts use to construe ambiguities against the drafter." Blue and Gold Fleet, L.P. v. United States, 492 F.3d at 1313 (quoting E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1342 (Fed. Cir. 2004)); see also HP I/GSA 3C, LLC v. United States, 364 F.3d 1327, 1334 (Fed. Cir. 2004) ("The general rule is contra proferentem, which requires ambiguities in a document to be resolved against the drafter."); Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997) ("More subtle ambiguities are deemed latent and are accorded an interpretation favorable to the contractor under the doctrine of contra proferentem."); T.W. Laquay Marine, LLC v. United States, 127 Fed. Cl. 748, 762 (2016) ("A latent ambiguity should be construed against the Government in accordance with the recognized contract interpretation principle of contra proferentum.").

According to the United States Supreme Court, "as between two reasonable and practical constructions of an ambiguous contractual provision . . . . the provision should be construed less favorably to that party which selected the contractual language." United States v. Seckinger, 397 U.S. 203, 216, reh'g denied, 397 U.S. 1031 (1970). This doctrine of contra proferentem "`pushes the drafters toward improving contractual forms and it saves contractors from hidden traps not of their own making." Fry Commc'ns, Inc. v. United States, 22 Cl. Ct. 497, 503 (1991) (quoting Sturm v. United States, 190 Ct. Cl. 691, 697, 421 F.2d 723, 727 (1970)). Similarly, according to the United States Court of Appeals for the Federal Circuit: "When a dispute arises as to the interpretation of a contract and the contractor's interpretation is reasonable, we apply the rule of contra proferentem, which requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document." Turner Constr. Co. v. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004) (citing United States v. Turner Constr. Co., 819 F.2d 283, 286 (Fed. Cir. 1987)); see also States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 (Fed. Cir. 2009); Gardiner, Kamya & Assocs. v. Jackson, 467 F.3d at 1352; HPI/GSA-3C, LLC v. Perry, 364 F.3d at 1334 (Fed. Cir. 2004).

The Federal Circuit in Blue and Gold Fleet further held that "[u]nder the doctrine, where a government solicitation contains a patent ambiguity, the government contractor has `a duty to seek clarification from the government, and its failure to do so precludes acceptance of its interpretation' in a subsequent action against the government." Blue and Gold Fleet, L.P. v. United States, 492 F.3d at 1313 (quoting Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1381 (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996))); see also Premier Office Complex of Parma, LLC v. United States, 134 Fed. Cl. 83, 88 (2017) ("A patent ambiguity is one that is `obvious, gross, [or] glaring." (alteration in original) (quoting H & M Moving, Inc. v. United States, 499 F.2d 660, 671, 204 Ct. Cl. 696, 716 (1974))); West Bay Builders, Inc. v. United States, 85 Fed. Cl. 1, 15 (2008) ("A patent ambiguity is one that is obvious, gross, glaring, so that [the] plaintiff contractor had a duty to inquire about it at the start.") (alteration in original) (internal quotation marks omitted).

Protestor in the above-captioned bid protest did not put forth any argument addressing whether the Solicitation's requirement to include "Name/Synonyms" in its standard test catalog constitutes a patent ambiguity. Nevertheless, the court finds that it does not constitute a patent ambiguity because it does not cause the Solicitation to contain "facially inconsistent provisions." See Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1381, nor was it glaringly wrong when MCI submitted its proposal. The requirement to include "Name/Synonyms" instead is a latent ambiguity, and as such, the "general rule of contra proferentem" applies, "which courts use to construe ambiguities against the drafter." See Blue and Gold Fleet, L.P. v. United States, 492 F.3d at 1313. Construing the ambiguity against defendant in the above-captioned bid protest, the court reads the Solicitation's instruction to include synonyms to be considered optional, and protestor's standard test catalog currently displayed on its website to be sufficient to meet the requirements of the Solicitation in this particular regard.

As discussed above, defendant and Mr. Basten also point out that the standard test catalog on protestor's website is missing other items required by the Solicitation relating to "Nest methodology,"14 "[m]aximum turnaround time,"15 "[a]ssay schedule,"16 and "[r]eference ranges."17 These deficiencies identified by Mr. Basten are consistent with the court's review of protestor's standard test catalog currently displayed on its website. Similar to the LOINC and test name/synonyms requirements, each of these items were listed the Solicitation's minimum requirements to be included in an offeror's standard test catalog, pursuant to subsection (f) of the Statement of Work. The court is not able to verify whether the required information was on the website version of protestor's standard test catalog when protestor submitted its proposal, but reference to these items do not appear on the website now. The court, therefore, finds that protestor did not follow the Solicitation's instructions with regard to providing the test methodology, maximum turnaround times, assay schedules and reference ranges in its online standard test catalog. The court notes that one of the tables attached to protestor's proposal included the turnaround times and assay schedules for each of the 611 line-item laboratory tests and services requested by the solicitation. Nevertheless, the Solicitation required these elements to be included with protestor's standard test catalog which, as protestor states, "contains over 2000 tests." Therefore, because protestor did not provide turnaround times and assay schedules for each test and service in its online standard test catalog, protestor's proposal does not comply with the Solicitation's instructions.

Mr. Basten's evaluation also indicated that "MCI's sample patient reports did not include each of two required identifiers: `the VA [a]ccession number and [the] MCI [a]ccession number[.]'" (alteration in original). Subsection (g) of the Statement of Work of the Solicitation required:

(emphasis added). One of the ten sample test reports from protestor's proposal provides the following information:798287798287277155629-2147483648

As indicated by the excerpt included immediately above, the sample report contains only one "Accession" number. (capitalization in original). It is not clear whether the number is intended to be the "Test Accession Number assigned by the facility," or the "Testing laboratory specimen number," each of which were required by the Solicitation. (capitalization in original). Nevertheless, the fact that there are not two numbers that could match these two required items, indicates that protestor's proposal is not compliant with the Solicitation's instructions.

Defendant next asserts that Mr. Basten's evaluation properly found that "MCI's quotation altogether omitted `a copy of their results of external or alternative performance assessments for the 10 tests' reflected in its sample patient reports." In protestor's submissions to this court, protestor disputes this conclusion by Mr. Basten, citing to its production of ten "Antibody Validation Log[s]" for the same ten tests for which it provided sample test reports. Protestor's production of the Validation Logs, however, appear to be in response to a separate requirement of the Solicitation. Subsection (e) of the Solicitation's Statement of Work states that the "[c]ontractor shall provide written documentation proving that they have successfully completed method performance validation &/or verification studies as appropriate for any 10 tests (listed within the attached item list) signed by the Laboratory Director." To that effect, protestor's proposal includes an attachment titled: "VALIDATION & VERIFICATION REPORT," which includes ten "Antibody Validation Log[s]" for the same ten tests for which protestor provided sample reports for in its proposal. (capitalization and emphasis in original). For example, protestor's Antibody Validation Log for Thyroglobulin provides as follows:

Antibody Validation. Log

Antibody Name and Clone: Thyroglobulin (2H11+6E1)

Manufacturer and Order ID: Roche 05267820001

The Solicitation in subsection (i) of the Statement of Work, however, additionally requires that the "[c]ontractor shall provide a copy of their results of external or alternative performance assessments for the same 10 tests that were submitted for line item[s] `e & g.'" Protestor's proposal includes no additional submission which conforms to this instruction in subsection (i). Protestor's proposal, therefore, was incomplete and not in compliance with the Solicitation in that regard.

Defendant also asserts that "MCI's quotation materially altered a specific attestation required by the solicitation." In subsection (k) of the Statement of Work, the Solicitation states that the "[c]ontractor shall provide written attestation that they have successfully completed the method performance validation &/or verification studies for all of the tests listed within the item list." Protestor's proposal includes an "Attestation Statement," which states:

(capitalization and emphasis in original). The court finds that, by attesting only to having completed performance validation and/or verification for "many of the test[s] listed," protestor has failed to conform to the Solicitation's instruction that the offeror "shall provide written attestation that they have successfully completed the method performance validation &/or verification studies for all of the tests listed within the item list." (emphasis omitted). Moreover, protestor statement that "[o]ur [p]artner laboratories that we work with have been validated on all of the testing that we currently are not," confirms that protestor has not completed performance validation and/or verification for all of the required laboratory tests and services, and appears to be a vague reference to its possible unidentified subcontractors. (emphasis omitted).

Finally, defendant argues that "MCI's quotation was not responsive to the solicitation's past performance requirement." Subsection (j) of the Solicitation's Statement of Work reads:

Protestor's proposal provided the following information regarding past performances:

(emphasis in original).

The court also notes that in Mr. Basten's evaluation of protestor's proposal, he states that there was "[n]ot enough information to determine what tests were performed for previous contracts." In protestor's motion for judgment on the administrative record, protestor responds to Mr. Basten's evaluation on this issue, stating that "[t]he stated terms of the Solicitation do not require that MCI provide a detailed test listing for each of its previous contracts." Protestor also cites to Section E.1 of the Solicitation, which incorporated FAR § 52.212-1, and which states in relevant part that, "[a]s a minimum, offers must show . . . [p]ast performance information, when included as an evaluation factor, to include recent and relevant contracts for the same or similar items and other references (including contract numbers, points of contact with telephone numbers and other relevant information)."

The Solicitation required that two of the three previous contracts provided by an offeror's proposal were to have been with VA Medical Centers outside of VISN 16. Protestor's proposal, however, only included past performance information for contracts with (1) the Michigan Army National Guard, (2) the United States Department of Agriculture, Forest Service, and (3) the US Army Corps of Engineers. None of these contracts were with a VA Medical Center, let alone a VA Medical Center outside of VISN 16. Therefore, while protestor is correct that the Solicitation did not require protestor to provide lists of laboratory tests and services performed in its previous contracts, the previous contracts that protestor provided as past performance examples are not consistent with the requirements of the Solicitation. Moreover, protestor, in relying on the part of the Solicitation that incorporates FAR § 52.212-1, fails to consider that the Solicitation's instructions in the Statement of Work required a more specific response from offerors, namely, previous contracts with VA Medical Centers outside of VISN 16. The Solicitation, therefore, requires more than the minimum response required by FAR § 52.212-1.

In sum, protestor's proposal is deficient in a number of respects. Most importantly, protestor is unable to personally perform all of the laboratory tests required by the solicitation because, as protestor now admits, it is not CAP accredited in Molecular Pathology and therefore cannot perform 127 of the 611 line-items of laboratory test and services required by the Solicitation. Although protestor's proposal makes passing reference that it may subcontract out these laboratory tests and services that it could not perform itself to its allegedly qualified partners, the proposal was wholly absent as to the names and appropriate certifications of the subcontractor or subcontractors it intended to use, and which tests it intended to subcontract out. Moreover, it was only during the course of this litigation that protestor identified how many tests it could not perform, as this information was not included in protestor's proposal. Given that the Solicitation required that the offeror demonstrate that it could perform all of the required tests, protestor's proposal did not meet the minimum requirements of the Solicitation, and therefore protestor's proposal was nonresponsive to the Solicitation, and protestor did not have a substantial chance of award. See A & D Fire Protection, Inc. v. United States, 72 Fed. Cl. at 138 ("A bidder submitting a nonresponsive bid has no standing to protest an award, because it has no chance of receiving the award."); Ryan Co. v. United States, 43 Fed. Cl. at 657 ("[T]he phrase `interested party,' as used in 28 U.S.C. § 1491(b), does not include a bidder . . . determined to be nonresponsive."); see also Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380 ("Only an interested party has standing to challenge a contract award." (internal quotation marks omitted)); Rex Serv. Corp. v. United States, 448 F.3d at 1307 ("To prove a direct economic interest, a party must show that it had a substantial chance of winning the contract." (internal quotation marks omitted)). Therefore, based on the findings and discussion above, protestor's complaint is dismissed for lack of standing.

CONCLUSION

For the foregoing reasons, defendant's and intervenor's respective motions to dismiss for lack of subject-matter jurisdiction are GRANTED based on protestor's lack of standing. Protestor's complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Opinion.

IT IS SO ORDERED.

Pre-Award Bid Protest; Cancellation; Motion to Dismiss; Lack of Subject-Matter Jurisdiction; Standing.