In the United States Court of Federal Claims
                                         No. 19-1518C
                             (Filed Under Seal: December 11, 2019)
                         (Reissued for Publication: December 20, 2019)*

*************************************
SYSTEM STUDIES & SIMULATION,        *
INC.,                               *
                                    *
             Plaintiff,             *
                                    *
      v.                            *
                                                    Postaward Bid Protest; Cross-Motions for
                                    *
                                                    Judgment on the Administrative Record;
THE UNITED STATES,                  *
                                                    Evaluation of Proposals; Assignment of
                                    *
                                                    Strengths and Weaknesses; Best Value
             Defendant,             *
                                                    Tradeoff
                                    *
      and                           *
                                    *
L3 DOSS AVIATION,                   *
                                    *
             Defendant-Intervenor.  *
*************************************

Walter B. English, Huntsville, AL, for plaintiff.

Christopher L. Harlow, United States Department of Justice, Washington, DC, for defendant.

Kevin P. Mullen, Washington, DC, for defendant-intervenor.

                                    OPINION AND ORDER

SWEENEY, Chief Judge

        In this postaward bid protest, plaintiff System Studies & Simulation, Inc. (“S3”) contends
that the United States Department of the Army, Mission and Installation Contracting Command
(“MICC” or “the Agency”) improperly awarded a contract for advanced helicopter flight training
support at Fort Rucker to defendant-intervenor L3 Doss Aviation (“L3 Doss”). Specifically, S3
alleges that the Agency’s evaluation of proposals and the subsequent tradeoff decision were
flawed. Before the court are S3’s and defendant’s cross-motions for judgment on the


       *
          This reissued Opinion and Order incorporates the agreed-to redactions proposed by the
parties on December 19, 2019. The redactions are indicated with bracketed ellipses (“[. . .]”).
administrative record.1 For the reasons set forth below, the court grants S3’s motion for
judgment on the administrative record and its request for injunctive relief.

                                         I. BACKGROUND

                                   A. History of the Requirement

        S3 and L3 Doss are both former incumbent contractors for this advanced helicopter flight
training requirement. Administration R. (“AR”) 125. Under a single award, indefinite
delivery/indefinite quantity contract administered by the United States Army National Guard
Bureau, S3 provided these services from September 14, 2009, through May 23, 2010; it then
continued its performance under a noncompetitive one-year task order until May 22, 2011. 

MICC – Fort Rucker subsequently competed the task order, using a best value tradeoff
source selection method, and awarded the task order to S3 for a performance period of May 23,
2011, to May 22, 2013, which was extended to November 22, 2013. 

The next
contract, W911S0-14-D-0002, was awarded on a lowest price technically acceptable basis. 

155. The Agency awarded the contract to the company now known as L3 Doss on
September 12, 2014, with an ordering period to end on September 15, 2018.2 

       During L3 Doss’s performance of that contract, staffing concerns arose:

               L3 Doss Aviation had difficulty in providing enough Instructor Pilots (IPs)
       and/or Maintenance Examiners to meet the daily training capability for the
       number of flight students listed in the contract. This is true even when the
       allowed temporary student capacity variations were applied per the contract.
       Invoice decrements had to be assessed for every monthly invoice during the rating
       period. The contractor had identified corrective actions to reduce the loss of
       contract personnel due to the favorable job market with the airlines, overseas
       locations and [United States Army Aviation Center of Excellence (“USAACE”)]
       [Department of the Army civilian] hires. Those corrective actions seem to be
       somewhat effective, however, L3 Doss has been unable to meet the full
       requirements of [Performance Work Statement (“PWS”)] paragraph 5.4.2.

(citations omitted). L3 Doss’s efforts to slow instructor attrition led to ten new hires
in option year three, but L3 Doss also lost ten instructors that same year. 

first three
years of performance, the invoice decrements due to these difficulties amounted to $[. . .].3 

           L3 Doss filed no motions or briefs in this matter.
       2
        The contract was awarded to Doss Aviation, Inc. AR 1561. That company was
subsequently acquired by L3 Technologies, Inc., of which L3 Doss is a wholly owned subsidiary.

Agency decremented $[. . .] in the first year, $[. . .] in the second year, and $[. . .]

                                                   -2-
126-27.

       In July 2017, in anticipation of the contract’s expiration, the Agency issued a Sources
Sought Notice. 

7-20. Eleven offerors, including S3 and L3 Doss, responded. 

120. Ultimately, the Agency resolved to solicit offers on a full and open basis. 

27-28.
Reasoning that shorter contract terms had made it difficult in the past to “recruit[] and retain[]
contractors with the required unique experience and qualifications,” the Agency opted to award
the work for a seven-year term. 

47. Regarding the technical risk of the contract, the
Agency commented:

                The technical risk is Moderate. The ability to adequately staff qualified
        personnel is critical to the accomplishment of the mission. If the contractor’s
        instructor pilot trainer and management staffing is inadequate, either due to lack
        of sufficient number of personnel or lack of properly qualified personnel, the
        quality and validity of the service will be degraded.

56. The Agency also determined that the schedule risk would be moderate, offering the
following explanation:

        The Army cannot meet aviation requirements in the field . . . if the Soldiers are
        not receiving the necessary training in the advanced airframes; this creates an
        undue burden by straining existing resources. The Army’s training mission does
        not stop for inclement weather or lack of training instructors. Contractor support
        helped eliminate the training backlog from years past. Another potential risk is
        the contractor’s ability to adapt to shifting priorities and Army mission recruiting
        goals without any degradation of services. A potential risk involves the
        contractor’s ability to ensure a smooth transition (phase-in) with no negative
        impact on training and a full level of performance.

                For mitigation of these risks, the Government is using a performance-
        based PWS which permits the contractor the flexibility to devise solutions in
        meeting the operational needs of the Advanced Helicopter Flight Training
        Support requirements. To reduce this risk, the contractor needs to have enough
        instructors to cover daily training requirements in case of illness, weather delays,
        or a student surge in relation to specific airframes. The Government will mitigate
        the above schedule risks through evaluation of the offeror’s management
        approach, past performance record in relation to staying on schedule/meeting
        deadlines and recruitment/retention plans. Training delays due to weather are
        made up on a weekend which allows for the students to graduate on time and
        eliminates any potential backlog from occurring.

57.

in the third year. AR 126-27.


                                                 -3-
                                       B. The Solicitation

        The Agency issued solicitation W9124G-18-R-0009 on June 25, 2018,4 to acquire
advanced helicopter flight training support for the USAACE at Fort Rucker, Alabama. 

256. The mission of the USAACE, the solicitation noted, was “to provide the Army with
professionally trained aviators and non-rated crew members through planning, coordinating and
executing formal flight instruction at the undergraduate and graduate level.” 

In
support of this mission, the Agency sought to provide the USAACE with “[f]light training
support to execute the advanced rotary wing training courses”; “[b]alanced training for all
student pilots by preparing them for the field in ‘Go to War’ aircraft”; and “[s]upport of EURO-
NATO and Foreign Military Training.” 

outlined the following minimum daily
training requirements by airframe:

           •   UH-60A/L Instructor Pilots – training capacity for 16 flight students
           •   UH 60A/L Maintenance Examiners – training capacity for 12 flight
               students
           •   AH-64D Instructor Pilots – training capacity for 64 flight students
           •   CH-47F Instructor Pilots – training capacity for 16 flight students
           •   CH-47F Flight Engineers Non-Rated Crew Members – support capability
               for 5 aircraft

The Agency would award a single firm, fixed price contract for a thirty-day phase-in
period, an eleven-month base period, and six one-year option periods. 

44-45.

        Prior to the solicitation’s release, the Agency was notified that some sensitive source
selection information had been released to at least one potential offeror. 

These
documents included the Independent Government Cost Estimate, briefing slides, and a variety of
other documents related to the solicitation. 

To avoid a potential competitive
advantage, the Agency released these documents publicly as part of the solicitation. 

        Section M of the solicitation described how the Agency planned to evaluate the
proposals. 

With respect to the substance of the evaluations, the Agency stated that
it intended to award the contract to the offeror “whose proposal represents the best value after
evaluation in accordance with the factors in the solicitation by utilizing the trade-off process.”

The solicitation outlined five such factors: (1) technical capability, (2) staffing and
management approach, (3) past performance, (4) small business participation, and (5) price. 

importance of the factors was described as follows:

       Factor 1 (Technical Capability) and Factor 2 (Staffing and Management

       4
         The solicitation was subsequently amended on seven different dates: July 23, 2018;
August 3, 2018; August 10, 2018; August 28, 2018; August 30, 2018; September 6, 2018; and
September 10, 2018. AR 380-507 (solicitation amendments), 508-95 (conformed solicitation).


                                                -4-
       Approach) are of equal importance and are more important [than] all other non-
       price factors. Factor 3 (Past Performance) is more important than Factor 4 (Small
       Business Participation). In accordance with [Federal Acquisition Regulation
       (“FAR”)] 15.304(e)(2), all non-price factors combined are significantly more
       important than Factor 5 (Price).

also advised:

               Although price is the least important evaluation factor, it has the potential
       to become more significant during the evaluation process. The degree of
       importance of price will increase with the degree of equality of the proposals in
       relation to the other factors on which selection is to be based. The importance of
       price will also increase when a proposal’s price is so significantly high as to
       diminish the value to the Government that might be gained under the other
       aspects of the offer. If, at any stage of the evaluation, all offerors are determined
       to have submitted equal, or virtually equal, non-price proposals, price could
       become the factor in determining which offerors shall receive the award.

        Three of the factors are relevant to this protest: technical capability, staffing and
management approach, and past performance. For the technical capability factor, the Agency
provided that it would evaluate “whether the offeror’s technical capability demonstrates the
offeror’s understanding of the requirements, capabilities, experiences, and abilities to execute the
tasks described in the PWS.” 

For the staffing factor, the Agency indicated that it
would evaluate whether the offeror “demonstrates an understanding of the personnel
requirements of the PWS as well as the ability to provide the personnel with the experience,
qualifications, and clearances necessary to perform and manage all tasks described in the PWS
by the contract start date,” specifically including the following criteria:

       •   Whether the Offeror identified its subcontractors, teaming partners or joint
           venture partners and described who will be used to perform this requirement
           by task and percentage of cost.

       •   Whether the proposed organizational chart displays positions, decision
           authority, and what parts of the organization are responsible for managing and
           accomplishing each task.

       •   Whether the Offeror’s proposed hiring, training and retention plan provides an
           adequate number of properly qualified personnel, as specified in the PWS,
           necessary to perform and manage the contract’s requirements.

       •   Whether the Offeror identified its proposed staffing (by number of
           personnel, labor category and company) and any plans to cross-utilize or rely


                                                -5-
             on reach-back, part-time or temporary personnel during contract performance.

       •     Whether the offeror identified the names of the Key Personnel who will
             perform under this contract, provided resumes that clearly demonstrate that
             they satisfy or possess all applicable certifications and other qualifications
             required for their designated positions and provided Letters of Commitment
             signed within 60 days of the due date for proposal submission.

       •     Whether the Offeror proposed [a] plan to execute the Employee Training
             Agreement Program as specified in PWS 1.6.17 and provided a copy of the
             agreement that the Offeror / Contractor intends to enter into with its affected
             employees.

the technical capability factor and staffing factor, evaluators would designate
strengths, weaknesses, significant weaknesses, deficiencies, and risks.5 

The Agency
further described “risk” as follows:

           Adjectival     Description
           Rating
           Low            Proposal may contain weakness(es) which have little potential
                          to cause disruption of schedule, increased cost or degradation of
                          performance. Normal contractor effort and normal Government
                          monitoring will likely be able to overcome any difficulties.
           Moderate       Proposal contains a significant weakness or combination of
                          weaknesses which may potentially cause disruption of schedule,
                          increased cost or degradation of performance. Special
                          contractor emphasis and close Government monitoring will
                          likely be able to overcome difficulties.
           High           Proposal contains a significant weakness or combination of
                          weaknesses which is likely to cause significant disruption of

       5
          A “strength” is “an aspect of an offeror’s proposal that has merit or exceeds specified
performance or capability requirements in a way that will be advantageous to the Government
during contract performance.” AR 590. A “weakness” is “a flaw in the proposal that increases
the risk of unsuccessful contract performance.” 

weakness” is “a flaw that
appreciably increases the risk of unsuccessful contract performance.” 

is “a
material failure of a proposal to meet a Government requirement or a combination of significant
weaknesses in a proposal that increases the risk of unsuccessful contract performance to an
unacceptable level.” 

“the potential for unsuccessful contract performance,” and
“[t]he consideration of risk assesses the degree to which an offeror’s proposed approach to
achieving the technical factor or sub-factor may involve risk of disruption of schedule,
degradation of performance, the need for increased Government oversight, and the likelihood of
unsuccessful contract performance.” 

increased cost or degradation of performance. Is
                        unlikely to overcome any difficulties, even with special
                        contractor emphasis and close Government monitoring.
           Unacceptable Proposal contains a material failure or a combination of
                        significant weaknesses that increases the risk of unsuccessful
                        performance to an unacceptable level.

then assign adjectival ratings based on a combined technical/risk ratings
table:

           Technical             Description
           Rating
           Outstanding           Proposal indicates an exceptional approach and
                                 understanding of the requirements and contains multiple
                                 strengths, and risk of unsuccessful performance is low.
           Good                  Proposal indicates a thorough approach and
                                 understanding of the requirements and contains at least
                                 one strength, and risk of unsuccessful performance is
                                 low to moderate.
           Acceptable            Proposal meets requirements and indicates an adequate
                                 approach and understanding of the requirements, and
                                 risk of unsuccessful performance is no worse than
                                 moderate.
           Marginal              Proposal has not demonstrated an adequate approach and
                                 understanding of the requirements, and/or risk of
                                 unsuccessful performance is high.
           Unacceptable          Proposal does not meet requirements of the solicitation,
                                 and thus, contains one or more deficiencies, and/or risk
                                 of unsuccessful performance is unacceptable. Proposal
                                 is unawardable.

        For the past performance factor, the Agency would “assess the relative risks associated
with an Offeror’s likelihood of success in performing the solicitation’s requirements as indicated
by that Offeror’s record of past performance.” 

Its risk assessment would encompass
consideration of recent and relevant past performance.6 

The Agency outlined
adjectival ratings for the relevancy of the past performance:




       6
        The solicitation classified recent performance as ongoing contracts, or those contracts
performed within three years of the solicitation’s issuance. AR 591.


                                                -7-
         Rating                   Description
         Very                     Present/past performance effort involved essentially the
         Relevant                 same scope and magnitude of effort this solicitation
                                  requires.
         Relevant                 Present/past performance effort involved similar scope
                                  and magnitude of effort this solicitation requires.
         Somewhat                 Present/past performance effort involved some of the
         Relevant                 scope and magnitude of effort this solicitation requires.
         Not                      Present/past performance effort involved little or none of
         Relevant                 the scope and magnitude of effort this solicitation
                                  requires.

The Agency provided the following adjectival ratings:

         Adjectival               Description
         Rating
         Substantial              Based on the offeror’s recent/relevant performance
         Confidence               record, the Government has a high expectation that the
                                  offeror will successfully perform the required effort.
         Satisfactory             Based on the offeror’s recent/relevant performance
         Confidence               record, the Government has a reasonable expectation that
                                  the offeror will successfully perform the required effort.
         Neutral                  No recent/relevant performance record is available or the
         Confidence               offeror’s performance record is so sparse that no
                                  meaningful confidence assessment rating can be
                                  reasonably assigned. The offeror may not be evaluated
                                  favorably or unfavorably on the factor of past
                                  performance.
         Limited                  Based on the offeror’s recent/relevant performance
         Confidence               record, the Government has a low expectation that the
                                  offeror will successfully perform the required effort.
         No                       Based on the offeror’s recent/relevant performance
         Confidence               record, the Government has no expectation that the
                                  offeror will be able to successfully perform the required
                                  effort.

                                 C. Initial Evaluation of Proposals

           The initial proposal deadline was July 25, 2018, 

but was later extended to
September 12, 2018, 

Seven offerors submitted timely proposals: L3 Doss; S3; [. . .],
[. . .]; the [. . .]; [. . .] (“[. . .]”); [. . .]; and [. . .] (“[. . .]”). See generally 

(proposals).

                                                    -8-
        Once the solicitation had closed, the proposals were evaluated by the Agency’s Source
Selection Evaluation Board (“SSEB”). 

The SSEB relied, in part, on assessments of
Factor 1 and Factor 2 by the Technical Evaluation Team, 

assessments of Factor
3 by the Past Performance Evaluation Team, 

and a Cost and Price Evaluation
Report from the Contract Price Cost Analyst, 

Based on these assessments, the
Agency established a competitive range and initiated discussions with [. . .], [. . .], S3, and L3
Doss. 

The other offerors each received a rating of “unacceptable” for the staffing
factor and were thus excluded from the competitive range. 

3616.

                            D. Discussions and Final Proposal Revisions

        On August 7, 2019, the Agency sent Evaluation Notices and requests for final proposal
revisions to [. . .], [. . .], S3, and L3 Doss. 

Each offeror submitted a timely response.

of the Technical Evaluation Team’s final assessment, it evaluated the offerors’
strengths for the first two factors. 

4280-86. For the technical capability factor,
S3 received two strengths, 

and L3 Doss received one strength, 

For the
staffing factor, S3 received a strength for its “[. . .],” which included [. . .], [. . .], [. . .] to recruit
qualified teammates, and [. . .]. 

Although S3 proposed to hire [. . .] to oversee the [.
. .], it did not receive a strength for this aspect of its proposal. 

4279. L3 Doss
received three strengths for the staffing factor: (1) [. . .]; (2) plans to hire a [. . .]; and (3) the “[. .
.]” it proposed “[. . .].” 

[. . .] received two strengths. 

Although the
Agency expressed concern that [. . .] planned to use [. . .] 

the Agency did not assign a
weakness for that component of the proposal, 

[. . .] received six strengths related to
the staffing factor, including one strength for its plan to hire [. . .]. 

        For the past performance factor, each offeror submitted references for past or ongoing
contracts. 

S3 offered six such references.7 

The first reference, for
helicopter training services, was classified as recent and very relevant, with a rating of
substantial confidence. 

reference, for flight training services, was classified as
partially recent and very relevant, with a rating of satisfactory confidence. 

reference, also for helicopter training, was classified as recent and relevant, with a rating of
substantial confidence. 

reference, for Blackhawk helicopter training, was
classified as partially recent and relevant, with a rating of satisfactory confidence. 

and sixth references, both for helicopter training, were classified as recent and relevant, with
ratings of satisfactory confidence. 

submitted four past performance references. 

The first reference, for
the prior contract, was classified as recent and very relevant, with a rating of satisfactory
confidence. 

reference, for fixed-wing aircraft training and other services, was

        7
        For the third, fourth, and fifth references, S3 performed the work as a subcontractor.
AR 3529.


                                                     -9-
classified as partially recent and relevant, with a rating of substantial confidence. 

reference, for fixed-wing aircraft training and other services, was classified as recent and
relevant, with a rating of satisfactory confidence.8 

reference,9 for simulator
training, was classified as partially recent and somewhat relevant, with a rating of satisfactory
confidence. 

.] submitted four past performance references. 

The first reference, for
live flight and simulator-based training, was classified as recent and relevant, with a rating of
substantial confidence. 

reference, for unmanned aerial vehicle flight instruction,
was classified as recent and relevant, with a rating of satisfactory confidence. 

reference,10 for fixed-wing flight training, was classified as recent and somewhat relevant, with a
rating of satisfactory confidence. 

reference,11 for helicopter training, was
classified as recent and somewhat relevant, with a rating of satisfactory confidence. 

.] submitted one past performance reference, for a contract involving helicopter
training. 

Regarding the staffing of this contract, one military reference expressed
concern:

       [. . .] is currently having issues with hiring enough instructor pilots to fill the
       demand. Although there is a shortage of pilots across the United States, I feel the
       company could do better at recruiting and providing compensation that resulted in
       the number of instructors required to meet the government requirements.

The reference was classified as recent and very relevant, with a rating of substantial
confidence. 

evaluations of the SSEB, the Source Selection Authority (“SSA”)
assigned the offerors the following final ratings:


       8
         For this contract, L3 Doss’s graduation rates fell below the 90% required by the PWS.
AR 3526. To address this deficiency, L3 Doss provided the Agency with a “Get Well Plan” on
October 6, 2017. 

sought “support or relief in several areas to help alleviate some of
[L3 Doss’s] late programmed student graduations . . . .” 

accepted and
implemented the plan. 

“was successful in conjunction with the significant
concessions granted by the government, which also included significant reductions in student
numbers during the last quarter of CY17.” 

. .], a subcontractor of L3 Doss, performed this contract. AR 3522. Under L3 Doss’s
proposal for the contract at issue, [. . .] would provide [. . .] of the total effort. 

. .], a subcontractor of [. . .], performed this contract. AR 3519.
       11
            [. . .], a subcontractor of [. . .], performed this contract. AR 3520.


                                                  -10-
                               L3 Doss         [. . .]       S3             [. . .]
       Factor 1 – Technical    Good            Good          Outstanding    Outstanding
       Capability
       Factor 2 – Staffing     Good            Good          Good           Outstanding
       and Management
       Approach
       Factor 3 – Past         Satisfactory    Substantial   Substantial    Satisfactory
       Performance             Confidence      Confidence    Confidence     Confidence
       Factor 4 – Small        Good            Good          Good           Good
       Business
       Participation

The SSA also noted the final proposed and evaluated prices:

       Offeror                      Total Proposed Price            Total Evaluated Price
                                                                    (inclusion of FAR
                                                                    52.217-8)
       L3 Doss                      $[. . .]                        $[. . .]
       [. . .]                      $[. . .]                        $[. . .]
       S3                           $[. . .]                        $[. . .]
       [. . .]                      $[. . .]                        $[. . .]

The Agency found each of the proposed prices to be fair, reasonable, realistic, and
balanced. 

                               E. The Source Selection Decision

       The SSA prepared a Source Selection Decision Document, evaluating the final proposals
and conducting a best value tradeoff. 

The decision included a comparison of
L3 Doss and S3’s respective ratings for Factors 1 through 4:

                An analysis of S3’s proposal against L3’s proposal indicates that they are
       substantially the same with S3 receiving a slightly higher rating of “Outstanding”
       in Factor 1 (Technical Capability), while L3 received a rating of “Good” in Factor
       1. Both offerors received a rating of “Good” in Factor 2 (Staffing and
       Management Approach). S3 received two (2) strengths in Factor 1 for [its]
       proposed [. . .] and for having experience on similar requirements, both of which
       are beneficial to the Government. L3 received one (1) strength in Factor 1, as the
       incumbent and having the experience, continuity, and greater familiarity with the
       requirement, which would be beneficial to the Government. L3 received three (3)
       strengths in Factor 2 for having [. . .]. This is a benefit to the Government
       because it could induce less turnover of the experienced workforce and maintain a
       fully trained staff. No weaknesses were indicated in either of the proposals once
       negotiations were concluded. L3 received a “Satisfactory Confidence” rating and

                                               -11-
       S3 received a slightly higher “Substantial Confidence” rating in Past
       Performance, Factor 3, and both received a rating of “Good” in Factor 4, Small
       Business Participation.

The SSA also addressed the price difference between the L3 Doss and S3 proposals:

                 In the price factor, S3’s total evaluated price was $[. . .] while L3 proposed
       $[. . .]. Both offerors’ pricing was determined to be reasonable and realistic.
       However, after an examination of their total price and the determination that S3
       has strengths that were identified in [its] proposal as being beneficial to the
       Government, their proposal did not offer a trade-off to the Government that would
       justify paying $[. . .] more than proposed by L3. It would not be prudent or
       advantageous to the Government and would not yield any long-term benefits to
       the program overall.12

(footnote added). Finally, the SSA provided the following summary of her decision:

       [A]lthough price is the least important evaluation factor, it has the potential to
       become more significant during the evaluation process. The solicitation provided
       that the degree of importance of price will increase with the degree of quality of
       the proposals in relation to the other factors on which selection is to be based.
       The importance of price will also increase when a proposal’s price is so
       significantly high as to diminish the value to the Government that might be gained
       under the other aspects of the offer. If, at any stage of the evaluation, all offerors

       12
           The SSA used very similar language to compare L3 Doss’s price proposal to those of
the other offerors. Regarding [. . .], the SSA stated:

       Although [. . .] has strengths that were identified in [its] proposal that were
       beneficial to the Government, [its] proposal did not offer a trade-off to the
       Government that would be beneficial enough to justify paying $[. . .] more than
       proposed by L3. Paying the higher price would not be advantageous to the
       Government and would not yield any long-term benefits to the program.

AR 4462. And regarding [. . .], the SSA stated:

       Both proposals were determined to be reasonable and realistic. Although the
       analysis indicates that [. . .]’s technical proposal is slightly higher than proposed
       by L3, [it] did not offer a tradeoff that would justify or yield substantial benefits
       to paying $[. . .] more than proposed by L3. Paying the much higher price would
       not be a prudent business decision and would not yield any long-term advantages
       to the overall program.

                                                -12-
       are determined to have submitted equal, or virtually equal, non-price proposals,
       price could become the factor in determining which offerors shall receive the
       award. The determining factor considering the non-price factors, has become
       price with the evaluation of the offeror’s proposals in the competitive range.
       Therefore, it has been determined that L3-Doss is the responsible offeror whose
       proposal conforms to the solicitation requirements and offers the best value to the
       Government, based on a comparative assessment of proposals against all source
       selection criteria in the solicitation.

Accordingly, the SSA decided to award the contract to L3 Doss. 

16, 2019, the Agency informed S3, [. . .], and [. . .] that it had awarded the
contract to L3 Doss. 

S3, [. . .], and [. . .] requested written postaward
debriefings, which they each received on September 20, 2019. 

                                       F. This Bid Protest

        On October 1, 2019, S3 filed the instant protest. In its complaint, it alleges that the
Agency (1) evaluated offerors unequally by failing to grant S3 a strength under the staffing
factor13 and (2) engaged in source selection analysis that was irrational, arbitrary, capricious, an
abuse of discretion, and contrary to law. It asks the court to enter an injunction, enjoining the
Agency from proceeding with performance of this contract pending the decision in this protest,
and require the Agency to reevaluate the proposals by performing a new tradeoff analysis and
making a new award decision. L3 Doss subsequently, and successfully, moved to intervene to
defend its receipt of the contract against the allegations that the Agency improperly evaluated its
proposal. Pursuant to the schedule proposed by the parties, briefing on cross-motions for
judgment on the administrative record concluded on November 26, 2019, and the court heard
argument on December 6, 2019. The motions are now ripe for adjudication.

                                        II. DISCUSSION

        In ruling on motions for judgment on the administrative record pursuant to Rule 52.1(c)
of the Rules of the United States Court of Federal Claims (“RCFC”), “the court asks whether,
given all the disputed and undisputed facts, a party has met its burden of proof based on the
evidence in the record.” A & D Fire Prot., Inc. v. United States, 

, 131 (2006)
(citing Bannum, Inc. v. United States, 

, 1356 (Fed. Cir. 2005)). Because the court
makes “factual findings . . . from the record evidence,” judgment on the administrative record “is
properly understood as intending to provide for an expedited trial on the record.” 

.

       13
          S3 initially contended, in its motion for judgment on the administrative record, that the
Agency improperly failed to assign a weakness to [. . .]. After additional briefing, however, S3
and defendant concluded that the alleged error was not relevant to this protest. As previously
noted, L3 Doss expressed no opinion on this matter.


                                                -13-
                                       A. Legal Standards

       The court reviews challenged agency actions pursuant to the standards set forth in 5
U.S.C. § 706. 28 U.S.C. § 1491(b)(4) (2018). Specifically, “the proper standard to be applied in
bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the
agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” Banknote Corp. of Am. v. United States, 

, 1350 (Fed. Cir. 2004).
Under this 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.” A court reviews a challenge brought on the first ground
       “to determine whether the contracting agency provided a coherent and reasonable
       explanation of its exercise of discretion, and the disappointed bidder bears a
       heavy burden of showing that the award decision had no rational basis.” “When a
       challenge is brought on the second ground, the disappointed bidder must show a
       clear and prejudicial violation of applicable statutes or regulations.”

Centech Grp., Inc. v. United States, 

, 1037 (Fed. Cir. 2009) (citations omitted)
(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 

, 1332-
33 (2001)); accord Advanced Data Concepts, Inc. v. United States, 

, 1058 (Fed.
Cir. 2000) (“The arbitrary and capricious standard . . . requires a reviewing court to sustain an
agency action evincing rational reasoning and consideration of relevant factors.”).

        Procurement officials “are ‘entitled to exercise discretion upon a broad range of issues
confronting them’ in the procurement process.” Impresa Construzioni Geom. Domenico 

(quoting Latecoere Int’l, Inc. v. U.S. Dep’t of the Navy, 

, 1356
(11th Cir. 1994)). Thus, the court’s review of a procuring agency’s decision is “highly
deferential.” Advanced Data Concepts, 

; see also Citizens to Preserve
Overton Park, Inc. v. Volpe, 

, 416 (1971) (“The court is not empowered to
substitute its judgment for that of the agency.”). Furthermore, a “protestor’s burden of proving
that the award was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law is greater [in negotiated procurements] than in other types of bid protests.” Galen Med.
Assocs., Inc. v. United States, 

, 1330 (Fed. Cir. 2004). And, when a contract is to
be awarded on a “best value” basis, procurement officials have “even greater discretion than if
the contract were to have been awarded on the basis of cost alone.” 

Bliss Co. v.
United States, 

, 449 (Fed. Cir. 1996) (“Procurement officials have substantial
discretion to determine which proposal represents the best value for the government.”)).
Consistent with the deference accorded to procuring agencies conducting negotiated
procurements, when a protestor challenges a procuring agency’s evaluation of a technical
proposal, the court’s “review . . . should be limited to determining whether the evaluation was
reasonable, [was] consistent with the stated evaluation criteria and complied with relevant
statutory and regulatory requirements.” Banknote Corp. of Am. v. United States, 

, 381 (2003), 

; accord E.W. Bliss 

(“[T]echnical
ratings . . . involve discretionary determinations of procurement officials that a court will not

                                                -14-
second guess.”).

        “[O]verturning awards on de minimis errors wastes resources and time, and is needlessly
disruptive of procurement activities and governmental programs and operations.” Grumman
Data Sys. Corp. v. Widnall, 

, 1048 (Fed. Cir. 1994) (quoting Andersen Consulting
Co. v. United States, 

, 932 (Fed. Cir. 1992). Thus, in addition to showing “a
significant error in the procurement process,” a protestor must show “that the error prejudiced
it.” Data Gen. Corp. v. Johnson, 

, 1562 (Fed. Cir. 1996); see also Bannum, 

(holding that if the procuring agency’s decision lacked a rational basis or was
made in violation of the applicable statutes, regulations, or procedures, the court must then
“determine, as a factual matter, if the bid protester was prejudiced by that conduct”). “To
establish prejudice . . . , a protester must show that there was a ‘substantial chance’ it would have
received the contract award absent the alleged error.” Banknote Corp. of Am., 

,
1350 (Fed. Cir. 2004) (quoting Emery Worldwide Airlines, Inc. v. United States, 

,
1086 (Fed. Cir. 2001)); see also Data Gen. 

(“[T]o establish prejudice, a
protester must show that, had it not been for the alleged error in the procurement process, there
was a reasonable likelihood that the protester would have been awarded the contract.”).

  B. The SSA’s Evaluation of the Staffing and Management Factor Did Not Prejudice S3

         S3 first contends that the Agency unequally assigned strengths to the offerors under the
staffing factor. Specifically, S3 asserts that although S3, L3 Doss, and [. . .] each proposed to
hire [. . .], only L3 Doss and [. . .] were assigned a strength for this feature. Defendant does not
defend the Agency’s failure to award S3 a strength for this aspect of its proposal, but instead
contends that this alleged error did not prejudice S3.

        Had the Agency properly assigned S3 a strength for its [. . .], S3 would have two
strengths to L3 Doss’s three. As defendant emphasizes, this alteration would not have pushed S3
past the “good” adjectival rating it shared with L3 Doss. However, the court’s inquiry does not
end here, for “[w]hen the government is required to perform a best-value tradeoff analysis, it
cannot limit its comparison of the proposals to the ratings assigned to them by lower-level
evaluators.” Firstline Transp. Sec., Inc. v. United States, 

, 378 (2011). Instead,
the court must determine whether S3 had a “substantial chance” of earning the contract award
had it been assigned this particular strength. The court finds no such prejudice here. While S3
emphasizes that the SSA is required to evaluate individual strengths and weaknesses, instead of
relying solely on the adjectival ratings themselves, S3 does not explain how this strength might
have changed its standing in relation to the other proposals.14 Rather than distinguishing S3 from


       14
           A similar lack of demonstrated prejudice was also noted in a previous S3 postaward
bid protest, one the parties extensively discussed in their briefs. See Sys. Studies & Simulation,
Inc. v. United States, No. 18-1494C, 

, at *7 (Fed. Cl. Jan. 22, 2019) (“S3 . . .
points to no evidence in the administrative record to show that it would have had a substantial
chance of being awarded the Task Order at issue under circumstances where its quotation
received the same evaluation ratings as [the awardee’s] quotation under the [agency’s] non-price

                                                -15-
L3 Doss in relation to the staffing factor, this [. . .] strength would only have made the
similarities between the two proposals more obvious.

        The court has previously observed that “[t]here is no such thing as a perfect
procurement,” Amazon Web Servs. v. United States, 

, 116 (2013), a principle
that holds true here. And this particular imperfection, viewed in isolation, does not effect the
prejudice necessary to invalidate the SSA’s conclusion.

     C. The SSA’s Source Selection Decision Was Arbitrary, Capricious, an Abuse of
                             Discretion, and Contrary to Law

        Next, S3 contends that the SSA based her analysis on a flawed past performance
evaluation, failed to properly document her tradeoff analysis, and improperly converted the
solicitation to a lowest price technically acceptable procurement. These errors, S3 alleges, make
the SSA’s decision arbitrary, capricious, an abuse of discretion, and contrary to law.

                         1. Evaluation of the Past Performance Factor

        S3 contests the SSA’s evaluation of L3 Doss’s past performance, maintaining that the
SSA failed to properly account for L3 Doss’s staffing issues on prior contracts. The qualitative
assessments involved in evaluating past performance “lie at the heart of the Agency’s
prerogative, since it is the agency that must bear the burden of any difficulties resulting from a
defective evaluation, and we will not substitute our judgment for a reasonably based past
performance rating.” DynCorp Int’l LCC v. United States, 

, 489 (2018)
(internal quotation marks omitted). Thus, “when a Court reviews an evaluation of past
performance . . . , ‘the greatest deference possible is given to the agency . . . .’” Walden Sec. v.
United States, 

, 229 (2018) (quoting Gulf Grp., Inc. v. United States, 

, 351 (2014)). Exercising this deference, the court finds no error with the SSA’s evaluation
of L3 Doss’s past performance.

        During the evaluation of L3 Doss’s past performance references, its previous scheduling
issues were thoroughly discussed. The story told by these references is not as bleak as S3
suggests. While L3 Doss’s first reference (for the current requirement) noted that L3 Doss
“ha[d] been unable to meet the full requirements of [the] PWS,” it also observed that such issues
“were not necessarily a reflection of [L3 Doss], but of challenges in the industry and location of
the training.” AR 3524. L3 Doss’s third reference also described flight instructor shortages that
negatively impacted graduation rates, but concluded that “[e]fforts taken by L3 Doss did correct
the performance issue and [L3 Doss was] performing to standards by the end of the period.” 

see also 

(attributing the improvement in part to the change in L3 Doss’s
ownership). And critically, despite these issues, each of L3 Doss’s four references indicated that
they would recommend L3 Doss for future government contracts. See 

3524-25,
3528; see also 

(“In relation to customer satisfaction, the Army’s assessing official

evaluation factors.”).


                                                -16-
indicated the Doss Aviation management team possesses and displays exceptional insight into
Army Aviation training.”).

        Once these references reached the SSA, she appropriately took them into account. Far
from ignoring these past performance issues, or blindly accepting the commentary of the Past
Performance Evaluation Board, the SSA independently considered the causes, effects, and
resolution of the staffing shortages. See, e.g., 

(noting that L3 Doss has “[. . .],” and
observing that short-term contracts “ma[de] it difficult to retain qualified individuals without the
assurance of continued employment”), 4464 (concluding that “L3 has shown significant
improvement in the areas identified regarding retention of qualified instructors and [. . .]”). The
SSA thus crafted a conclusion that was not only independent, but also thoroughly consistent with
the administrative record.

        As defendant emphasizes, the Agency is uniquely qualified in this case to evaluate L3
Doss’s past performance. The Agency has interacted with L3 Doss as an offeror on this
solicitation, as the incumbent on the current contract, and as a competitor in an industry where
pilots of the kind necessary here are in short supply. Based on this multifaceted relationship, on
the thorough references provided to the Past Performance Evaluation Board, and on the SSA’s
engagement with those references, the SSA’s evaluation of L3 Doss’s past performance was
reasonable.

                                      2. Tradeoff Analysis

         While the court does not find error with the Agency’s evaluation of the past performance
factor itself, the weighing of the overall proposals is a separate matter. S3 asserts that the SSA
failed to engage in a proper tradeoff analysis, effectively converting this acquisition to a lowest
price technically acceptable procurement, and the court concurs.

        Under the FAR, a procuring agency must document its source selection decision, and that
documentation must “include the rationale for any business judgments and tradeoffs made or
relied on by the SSA, including benefits associated with additional costs.” FAR 15.308 (2016).
This tradeoff analysis “obliges the agency to do more than simply parrot back the strengths and
weaknesses of the competing proposals—rather, the agency must dig deeper and determine
whether the relative strengths and weaknesses of the competing proposals are such that it is
worth paying a higher price.” Serco Inc. v. United States, 

, 497 (2008).
Moreover, even if a solicitation provides that technical evaluation criteria are more important
than price, the “magnitude of the price differential” between two proposals remains relevant
because “logic suggests that as that magnitude increases, the relative benefits yielded by the
higher-priced offer must also increase.” 

emphasizes, L3 Doss received the lowest combined rating of any offeror in the
competitive range. See AR 4349. While L3 Doss’s proposal also boasted the lowest price, its
price was only 6% lower than that proposed by S3. If the SSA determines that such a tradeoff
offers the best value to the government, she must document her analysis and conclusion
thoroughly. The possibility that “the SSA, in [her] own mind, made such cost/benefit

                                                -17-
comparisons, but merely failed to capture them on paper,” Serco 

, does
not satisfy the FAR’s documentation requirements.

         Throughout the source selection decision, the SSA attempted to equalize the relative
merits of the four offerors in the competitive range. The SSA, in her comparative analysis,
acknowledged the rating differences between S3 and L3 Doss, but nonetheless concluded that
their proposals were “substantially the same.” AR 4462. Her comparative analysis of L3 Doss
and [. . .] employed the same language. See 

The SSA also attempted to smooth over
any significant differences between the proposals by repeatedly emphasizing the government’s
“reasonable expectation” that both L3 Doss and its competitors could “successfully perform the
services required in the solicitation.” 

(comparing L3 Doss to S3); see also 

(comparing L3 Doss to [. . .]). Assertions that an offeror is “more than adequate,” or similar
assurances of acceptability, “ha[ve] no place in a best-value tradeoff analysis.” Firstline Transp.

. Notably, the SSA summarizes her analysis by declaring that because
the non-price aspects of the proposals were “equal, or virtually equal,” . . . “[t]he determining
factor . . . has become price . . . .” AR 4464. In short, the SSA “minimized the real differences
between the proposals and created a false impression of equivalence, thus allowing [her] to base
[her] decision largely on price instead of on the non-price factors.” Firstline Transp. 

. Not only does this “false impression of equivalence” contravene the FAR, but
such “generalized statements that fail to reveal the agency’s tradeoff calculus deprive this court
of any basis upon which to review the award decisions.” Serco 

.

        Had she been faced with a significant price difference, the SSA’s rejection of the higher-
price proposals would have been less glaring. But the relatively small difference between the
proposed prices further highlights the inadequacy of her analysis. L3 Doss proposed a price
approximately 3% lower than [. . .]’s, approximately 6% lower than S3’s, and approximately
16.5% lower than [. . .]’s. See 

Rather than actively weighing the offerors’ nonprice
ratings versus their price premiums, the SSA provided only conclusory statements regarding the
advantage to the government and the long-term benefits to the program.

          The inescapable result of this flawed analysis was prejudice to S3. The SSA’s attempts
to equalize the technical differences between the proposals is a significant flaw, one that cannot
be disentangled from her ultimate decision. See Femme Comp Inc. v. United States, 

, 767 (2008) (finding prejudice in part because “when the [SSA] concluded that a higher-
priced proposal that had received a higher adjective . . . rating was technically superior, she
would often note the superiority and then proceed to either downplay it as ‘slight’ or ‘not
unlimited’ . . .”). Moreover, of the offerors in the competitive range, S3 was only out-scored by
[. . .], whose price was considerably higher. See AR 4390, 4349. Thus, the court determines that
but for the Agency’s error, S3 had a substantial chance of being awarded the contract.

                             D. S3 Is Entitled to Injunctive Relief

         Because S3 has established the existence of a significant, prejudicial procurement
error, the court must address its request for injunctive relief. The United States Court of Federal
Claims has the authority to award injunctive relief pursuant to 28 U.S.C. § 1491(b)(2), and is

                                               -18-
guided in making such an award by RCFC 65(d). In determining whether to award a permanent
injunction, a court must consider whether (1) the protestor has succeeded on the merits; (2) the
protestor will suffer irreparable harm if the court withholds injunctive relief; (3) the balance of
hardships favors the grant of injunctive relief; and (4) it is in the public interest to grant
injunctive relief.15 PGBA, LLC v. United States, 

, 1228-29 (Fed. Cir. 2004).

                                    1. Success on the Merits

        As discussed above, S3 has succeeded on the merits of its protest in one regard—the SSA
did not conduct the proper tradeoff analysis, an error which invalidates the Agency’s best value
determination. 

Section II.C.2. The first factor, therefore, weighs decidedly in S3’s
favor.

                                      2. Irreparable Harm

       When assessing irreparable injury, “[t]he relevant inquiry in weighing this factor is
whether plaintiff has an adequate remedy in the absence of an injunction.” Overstreet Elec. Co.
v. United States, 

, 743 (2000) (citation omitted). The United States Court of
Federal Claims has repeatedly held that a protester suffers irreparable harm if it is deprived of the
opportunity to compete fairly for a contract. See CRAssociates, Inc. v. United States, 

, 390-91 (2010); Serco 

; Impresa Construzioni Geom. Domenico
Garufi v. United States, 

, 828 (2002).

        Over the course of this contract’s performance, S3 stood to gain over $[. . .] million in
revenue. See AR 4349. Moreover, considering the thirty-day phase-in period, the eleven-month
base period, and the six one-year option periods, this contract could last for a total of seven
years. See 

S3 stands to lose not simply the monetary value of the contract (a
substantial sum), but also the training opportunities that would naturally stem from performance
of the contract.16 See Femme 

(“[A]ny offeror that should have been
awarded a contract, but was not, will be at a disadvantage when competing for future contracts.
No adequate remedy exists to make up for this potential loss of . . . competitive advantage.”).
Accordingly, the evidence in the administrative record adequately demonstrates that S3 will
suffer irreparable harm if injunctive relief is not provided.

       15
          Defendant contends in its cross-motion that S3 cannot show success on the merits but
does not articulate any specific objections to the other elements.
       16
           The history of this procurement reveals the value the offerors assigned to such training
resources. In July 2018, L3 Doss filed an agency-level protest (ultimately denied), alleging that
the Agency “ha[d] provided [S3] access to Army resources for training Instructor Pilots, and
thereby ha[d] created an unfair competitive advantage for this solicitation and similar
procurements in the future.” AR 623; see also 

532 (describing the qualification
training provided by the government to contractor personnel). The concerns L3 Doss voiced in
this protest demonstrate the potential competitive advantage of these resources.


                                                -19-
                                   3. Balance of Hardships

        Under the next factor, “the court must consider whether the balance of hardships leans in
plaintiff’s favor,” requiring “a consideration of the harm to the government and to the
intervening defendant.” Reilly’s Wholesale Produce v. United States, 

, 715
(2006). Although injunctions inevitably cause the government some delay, “only in an
exceptional case would [delay] alone warrant a denial of injunctive relief, or the courts would
never grant injunctive relief in bid protests.” 

Assocs., Inc. v. United
States, 

, 399 (1999)); accord Serco 

.

        As discussed above, foregoing injunctive relief could cause S3 irreparable injury,
financial and otherwise. The government, meanwhile, has asserted no countervailing hardship to
outweigh these financial and educational harms. See Wetsel-Oviatt Lumber Co. v. United
States, 

, 753-54 (1999) (“[T]he balance of hardship tips in favor of the plaintiff
where . . . the government fails to articulate any harm that it will endure if the injunction is
granted”). Furthermore, with respect to any increase in administrative costs, any hardship to the
government stems from the Agency’s own failure to properly conduct the best value tradeoff.
Thus, the court determines that this element too weighs in S3’s favor.

                                       4. Public Interest

        Finally, “the public interest in honest, open, and fair competition in the procurement
process is compromised whenever an agency abuses its discretion in evaluating a contractor’s
bid.” PGBA, LLC v. United States, 

, 663 (2003); see also Bilfinger Berger AG
Sede Secondaria Italiana v. United States, 

, 393 (2010) (“The public interest in
preserving the integrity and fairness of the procurement process is served by enjoining arbitrary
or capricious agency action . . . .”). Here, the public interest is best served by requiring the
government to comply with federal procurement law–law that was intended to promote
competition.

                                      III. CONCLUSION

        The court has considered all of the parties’ arguments. To the extent not discussed
herein, they are unpersuasive, without merit, or unnecessary for resolving the issues currently
before the court.


       For the reasons discussed above:

       1. The court DENIES defendant’s cross-motion for judgment on the administrative
          record.

       2. The court GRANTS S3’s motion for judgment on the administrative record.



                                               -20-
3. The court ENJOINS the Agency from proceeding with the performance of the
   contract awarded to L3 Doss.

4. The court ORDERS the Agency to reevaluate the proposals in the competitive range
   and render a new Source Selection Decision, performing a new tradeoff analysis and
   assigning each factor the appropriate weight in accordance with this court’s decision.

5. The court has filed this ruling under seal. The parties shall confer to determine
   agreed-to proposed redactions. Then, by no later than Thursday, December 19,
   2020, the parties shall file a joint status report indicating their agreement with the
   proposed redactions, attaching a copy of those pages of the court’s ruling
   containing proposed redactions, with all proposed reactions clearly indicated.

6. The clerk is directed to enter judgment in favor of S3, consistent with this opinion.

IT IS SO ORDERED.


                                          s/ Margaret M. Sweeney
                                          MARGARET M. SWEENEY
                                          Chief Judge




                                        -21-