In any event, even if the evaluation of the offerors’ prices was flawed, Odyssey’s arguments demonstrate that the alleged errors could not have prejudiced the protester. In this regard, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. Armed Forces Hospitality, LLC, B‑298978.2, B-298978.3, Oct. 1, 2009, 2009 CPD ¶ 192 at 9-10; McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3.

Here, Odyssey contends that the differences between Odyssey’s proposed staffing and the non-incumbent offerors’ proposed staffing resulted in an “approximately” $1.2 million price difference, which was “nearly the entire difference” between Odyssey’s and Offeror 3’s evaluated prices. Protester’s Comments (Mar. 21, 2016) at 33. As the record shows, however, the difference between Odyssey’s and Choctaw’s evaluated prices was $2.8 million, and the difference between Odyssey’s and Offeror 3’s evaluated prices was $1.4 million. AR, Tab 85, SSDD, at 8. Thus, even if the protester’s arguments concerning the agency’s price evaluation had merit, the protester’s own calculations show that its evaluated price would still be more than $200 thousand higher than Offeror 3’s evaluated price. See id. Because the solicitation provided for award to the offeror that submitted the LPTA proposal, Offeror 3, and not Odyssey would be in line for award. We therefore conclude that the protester’s arguments concerning the evaluation of price fail to demonstrate any possibility of prejudice, and find no basis to sustain the protest. See Chandler Solutions, LLC, B‑409655.2, Aug. 13, 2014, 2014 CPD ¶ 239 at 4.  (Odyssey Marketing Group, Inc. B-412695,B-412695.2: Apr 21, 2016)  (pdf)

Adherence to the RFP’s Evaluation Scoring Scheme

edCount alleges that the agency failed to follow the evaluation scoring scheme outlined in the RFP when it assigned point scores to the proposals. According to the protester, the agency did not use the point score system detailed in the solicitation. edCount contends that there is no way to determine the basis for, or underlying reasonableness of, the point score assigned to its proposal.

We agree with this aspect of edCount’s protest. Agencies may not properly announce one basis for evaluating proposals and making a source selection decision and then evaluate proposals and make award on a different basis. Johnson Controls Security Systems, LLC, B-296490.3 et al, Mar. 23, 2007, 2007 CPD ¶ 100 at 7. For example, an agency may not properly specify the relative weight of evaluation considerations in a solicitation and then apply a different weighting scheme when evaluating proposals and making a source selection decision. Id. While an agency’s use of point scores can serve to guide intelligent decisionmaking, the assignment of the underlying point scores must be on an intelligible, reasonable, equal and consistent basis for all proposals. Nexant, Inc., B-407708, B-407708.2, Jan. 30, 2013, 2013 CPD ¶ 59 at 7.

Here, the record shows that the evaluators did not assign point scores to the proposals in a manner that was consistent with the evaluation criteria outlined in the RFP. Specifically, the record shows that the evaluators assigned only overall point scores for each technical evaluation factor without scoring the proposals using the more detailed scoring scheme outlined under the subfactors included under each factor. The agency concedes as much, stating:

As an initial matter, and for purposes of clarification, ED’s [the Department of Education’s] Technical Evaluation Panel (“TEP”) . . . specifically chose not to follow the instructions in evaluating offerors’ proposals set forth in the Technical Evaluation Plan and Instructions. [Citations to the record omitted]. Rather, the record shows that ED’s technical evaluators analyzed each offeror’s technical proposal in accordance with the narrative evaluation [subfactors] set forth under each technical evaluation subfactor [factor] (i.e. Organizational Capability and Experience; Technological Experience; Soundness of Technical Work Plan; and Management Plan). Instead, the TEP employed a more holistic approach to evaluating proposals under each technical [factor].

Agency Legal Memorandum, July 15, 2013, at 2 (emphasis in original).

As an initial matter, the agency appears to take the position that it was not required to assign point scores in a manner consistent with the point values assigned to the evaluation subfactors because the express instruction to so score proposals was only articulated in the agency’s source selection plan, and nothing in the RFP specifically stated that the agency would assign point scores on a subfactor-by-subfactor basis. We disagree. The agency’s position ignores that these subfactors and their corresponding point scores also were identified in the RFP. RFP at 16-18. This solicitation language, which identified 23 separate subfactors (with specific point score values for each) obligated the agency to assign point scores in a manner consistent with the scheme articulated in the RFP.

There is nothing in the record to show that the agency scored proposals in a manner consistent with the terms of the RFP, and, as noted, the agency concedes this issue. On the contrary, the record includes numerous examples where the agency’s scoring of the protester’s proposal clearly was not compliant with the subfactor weighting scheme announced in the solicitation. These defects permeate both the individual evaluators’ scoring, as well as the consensus scoring.

For example, with respect to the individual scores assigned by the evaluators, the record shows that evaluator no. 3 assigned edCount’s proposal the lowest score of 12 points (out of a possible 25 points) under the technological experience factor. That individual’s score sheet does not show either the subfactors under which the evaluator assigned points, or the number of points deducted for each perceived weakness. Agency Report (AR), exh. 6, evaluator 3 worksheet, at 13-14. It also cannot be ascertained from the record whether this individual’s assignment of points was attributable to more important, or less important, subfactors.

In addition, the record shows that, in arriving at their consensus point score, the individual evaluators simply averaged their total point scores, even though there were wide variations in those scores, and even though a number of the weaknesses forming the bases for the individual evaluator point scores were not carried forward to the consensus evaluation report. AR, exh. 20, Technical Evaluation Consensus Report, at 8. The record is devoid of any explanation of how the evaluators resolved the wide variation in the scores assigned by the individual evaluators, or why they concluded that a simple average of the individual scores assigned to the higher-level factors accurately reflected the collective judgment of the evaluators. While the use of a mathematic average to develop a consensus score is not per se improper, see, Smart Innovative Solutions, B-400323.3, 2008 CPD ¶ 220, at 3-4, we cannot conclude that it was reasonable here.

In sum, the record shows that, because the evaluators elected to ignore the solicitation’s detailed evaluation scheme--and more specifically, the relative weight of the evaluation subfactors established by the terms of the RFP--the evaluation results included pervasive mathematical anomalies in the scores assigned to the edCount proposal. We conclude that the cumulative effect of these errors renders the agency’s point scores essentially meaningless.

Prejudicial Effect of the Agency’s Point Scoring Error

Despite the agency’s failure to adhere to the RFP’s subfactor evaluation scheme in assigning a point score to the edCount proposal, we nonetheless conclude that the agency’s error was not prejudicial to edCount. Prejudice is an essential element of every viable protest, and where none is shown or otherwise evident, we will not sustain a protest, even where a protester may have shown that an agency’s actions arguably were improper. ITT Corp.-Electronic Sys. , B-402808, Aug. 6, 2010, 2010 CPD ¶ 178 at 7.

The record shows that, although the overall consensus point score assigned to edCount’s proposal essentially was meaningless for the reasons discussed above, the agency did identify 14 specific weaknesses in the proposal across every technical evaluation factor. In making her competitive range determination, the contracting officer described these weaknesses in detail. She found that several proposals, including edCount’s, were “so significantly weaker” than other proposals that there was no reasonable expectation that they could be improved without significant revisions; as a consequence, she eliminated edCount’s and the other proposals from the competitive range. AR, exh.21, Competitive Range Determination, at 22.

Thus, although the point score assigned to the edCount proposal could not have formed a rational basis for eliminating the proposal from the competitive range, the agency’s underlying detailed analysis of the edCount proposal does provide a reasonable basis for its elimination from the competitive range. Smart Innovative Solutions supra at 4.  (edCount, LLC--Protest and Costs, B-407556.3, B-407556.4, B-407556.5, B-407556.6, Aug 15, 2013)  (pdf)

We deny the protest because the record shows that BCPeabody was not prejudiced by the Corps’ unequal evaluation of proposals.

Although an offeror has the burden of submitting an adequately written proposal, and an agency may downgrade a proposal for the lack of requested information, an agency may not ignore prior performance information of which it is aware. Consolidated Eng’g Servs., Inc., B-279565.2, B-279565.3, June 26, 1998, 99-1 CPD ¶ 75 at 6. Where multiple proposals propose the same subcontractor, once the agency becomes aware of that subcontractor’s experience, including from another firm’s proposal, it cannot reasonably assign one proposal a higher score than another based on that experience. Id. Here, the proposals of both Edens and BCPeabody included BFC as their respective cut-off wall construction subcontractor, and it was not reasonable for the Corps to find BFC’s experience acceptable for Edens but unacceptable for BCPeabody.

However, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).

We agree with the Corps that BCPeabody was not prejudiced by the agency’s error. BCPeabody candidly stated in its initial protest that it intended to submit a project experience narrative for Bauer Foundations Canada. Although the parties agree that the firms are affiliated, Bauer Foundations Canada is a distinct legal entity from BFC. Thus, under the terms of the RFP, the Corps would have “noted as a deficiency” the lack of a letter of commitment from Bauer Foundations Canada. Accordingly, we have no basis to disagree with the Corps’s assertion that such a deficiency would have resulted in the rejection of BCPeabody’s proposal as unacceptable for a reason independent of the evaluation of experience and past performance.  (BC Peabody Construction Services, Inc., B-408023, May 10, 2013)  (pdf)

Smith initially complained that, among other things, the agency had unequally shared information relating to the agency’s estimated cost and budget. Specifically, Smith argued that some offerors had been improperly informed at an industry conference that the agency’s budget for this procurement was $2.3 million, and not $9 million, as Smith had believed. Smith contends that, had it known of the lower budget, it “would have prepared a significantly lower [proposal] that was much closer, if not less expensive than [FN’s proposal].” Protest at 8.

In response to the protest, the agency stated that the protester’s understanding of the agency’s budget was incorrect because the agency’s budget was, in fact, approximately $9.9 million. See Legal Memorandum at 16. The protester withdrew this ground of protest in its comments.

In a supplemental protest, Smith argues that the agency improperly relaxed the delivery requirement without giving the protester an opportunity to compete for the agency’s actual requirements. Smith contends that its price would have been significantly lower if it had not had to provide the phase two product samples within 90 days. Specifically, Smith argues that its proposed price would have been less than FN’s awarded price. In support of this, Smith provided a declaration from its procurement manager that describes the protester’s proposed pricing under each of the first three procurement phases. The declaration explains how Smith, to account for the relaxed delivery schedule, would have reduced its proposed $1.81 million price for the three phases by more than $1.12 million. See Protester’s Supp. Protest and Comments, exhib. A, Decl. of Smith Procurement Manager, at 2-8.

Where an agency’s requirements materially change after a solicitation has been issued, it is generally required to issue an amendment to notify offerors of the changed requirements and afford them an opportunity to respond. Federal Acquisition Regulation (FAR) § 15.206(a); Murray-Benjamin Elec. Co., L.P., B-400255, Aug. 7, 2008, 2008 CPD ¶ 155 at 3-4. Amending the solicitation provides offerors an opportunity to submit revised proposals on a common basis that reflects the agency’s actual needs. Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD ¶ 165 at 6.

Here, the basis for the agency’s exclusion of Smith’s proposal from the competitive range was the proposal’s significantly higher price. The record shows that Smith was the only offeror that proposed to satisfy the RFP’s delivery schedule for the phase two product samples. After exclusion of Smith’s proposal from the competitive range, the agency amended the RFP to relax the delivery schedule. We think that it should have been reasonably apparent to the Navy that the relaxation of the delivery schedule could affect the firms’ proposed prices and that the Navy should have allowed Smith an opportunity to provide a revised proposal that met the relaxed delivery schedule.

Nevertheless, we do not find that the protester was prejudiced by the agency’s actions. Competitive prejudice is an essential element of a viable protest; where no prejudice is shown or otherwise evident, our Office will not sustain a protest, even if a deficiency in the procurement is evident. Moon Eng’g Co., Inc., B-256079, May 5, 1994, 94-1 CPD ¶ 296 at 4. In its initial protest, Smith stated that its higher proposed price was based upon the protester’s understanding of the amount of available government funding, and not the solicitation’s delivery schedule. See Protest at 6-8. After being informed that the protester’s understanding of the available government funding was not mistaken, Smith withdrew this protest allegation without explanation. Smith now asserts that its much higher price is based upon the solicitation’s delivery schedule. Smith, however, does not reconcile this new claim with its earlier assertion that its higher price was based upon its understanding of the amount of funding available.

Smith provides a declaration from its procurement manager to support its claim that Smith would have reduced its overall price by nearly 62 percent had Smith known of the agency’s actual delivery requirements for the phase two product samples. See Protester’s Supp. Protest and Comments, exhib. A, Decl. of Smith Procurement Manager. This statement purports to explain how the protester’s research and development and production costs for all three development phases would be significantly reduced to reflect the relaxed schedule for the four product samples. In this regard, the procurement manager identifies reduced cost elements (such as, for example, engineering and production labor costs, and material costs) for each development phase. This statement, however, is not supported by any documentation or detail (such as, labor hours or labor mix underlying the bottom line labor or production costs) demonstrating how Smith’s proposed price was derived or why it would change.

We accept on its face Smith’s assertions in its supplemental protest that the relaxed schedule would have allowed it to reduce its overall costs by [DELETED]. In other words, we accept that Smith’s overall price could be lower based upon the relaxed schedule. Nevertheless, the record does not show any reasonable possibility that the relaxation of the delivery schedule for the four product samples would result in a nearly 62 percent reduction in Smith’s total price. In light of Smith’s earlier statement that its proposed price was based upon the amount of government funding the firm believed was available, we are not persuaded by the unsupported declaration of Smith’s procurement manager, and we will not sustain the protest on this basis.  (Smith Enterprise, Inc., B-407529, B-407529.2, B-407529.3, Dec 28, 2012)  (pdf)

Calnet challenges the evaluation of McNeil's past performance, claiming that the agency unreasonably failed to consider one of the three PPQs received for McNeil. According to the protester, had the agency considered the third PPQ, McNeil's past performance rating would have been lower, and a different source selection decision might have resulted.

Prejudice is an essential element of every viable protest; we will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions; in effect, a protester must show that, but for the agency's actions, it would have had a substantial chance of receiving the award. Armorworks Enter's., LLC, B-400394.3, Mar. 31, 2009, 2009 CPD para. 79 at 3. Here, we find that, even if Calnet is correct that the agency improperly failed to consider the third PPQ, Calnet was not prejudiced.

The record shows that the agency rated past performance using the same numeric scores (ranging from 1 to 4) assigned under the various elements of the PPQs. See, AR, exh. 18. The agency calculated an arithmetic average of the scores, and then assigned adjectival ratings in accordance with the thresholds established in the RFP. Based on this approach, Calnet's proposal received an average numeric score of 3.3 under each of the evaluated areas (and thus an overall past performance score of 3.3) and, correspondingly, a low risk rating. AR, exh. 67, at 2-4. In the case of McNeil, the record shows that the agency received three PPQs for the firm, but decided that one of the three should not be considered in the scoring. As calculated, McNeil's average scores were 4 points each in the areas of program management, quality management/performance and cost performance, and 3.7 in resource management, resulting in its very low risk rating. AR, exh. 67, at 6-8. Including the scores from the third PPQ in the calculation would have reduced McNeil's average scores to 3.45 for program management, 3.57 for resource management, 3.5 for quality management/performance, 2.8 for cost performance, and its overall score to 3.3 points. AR, exhs. 59, 67. Since this is the same overall score received by Calnet, McNeil would have remained in line for award ahead of Calnet due to its lower price. It follows that Calnet was not competitively prejudiced by the alleged evaluation error, and that there thus is no basis for sustaining Calnet's protest on this ground.

Calnet asserts that the agency unreasonably failed to make qualitative adjustments to McNeil's past performance scores based on negative comments included in the third PPQ. However, since the negative comments were written by the reference in explanation of the ratings assigned, the agency reasonably could assume that the essence of the comments already was reflected in the numeric ratings. Moreover, the commentary underlying the ratings assigned for all three of the PPQs was specifically noted in the agency's past performance evaluation, and the source selection authority thus was fully aware of the negative comments in making the award decision. AR, exh. 67, at 6-8.

In its initial protest, Calnet asserted that the agency improperly failed to consider three cure notices that allegedly were issued to McNeil under three different contracts. The agency responded in its report that it had not found information concerning the three contracts during its evaluation when it searched the past performance information retrieval system (PPIRS) using McNeil's name and its contractor and government entity (CAGE) code, and that there was no other evidence of cure notices in connection with the three contracts. In its comments, Calnet did not rebut the agency's response. Accordingly, we consider this aspect of Calnet's protest abandoned. See Washington-Harris Group, B-401794, B-401794.2, Nov. 16, 2009, 2009 CPD para. 230 at 5 n.3.

While preparing its report responding to Calnet's cure notice argument, the agency performed an additional search of the PPIRS using the contract numbers supplied by Calnet in its protest, and found several past performance reviews of McNeil in connection with one of the three contracts. AR, exhs. 61, 62 and 63. Calnet argues that this information should be factored into McNeil's past performance evaluation. However, the RFP did not require the agency to consider information beyond that included in the PPQs; it advised only that the agency could use information obtained from other sources. RFP at 55. Thus, the agency's failure to discover or consider the information during the evaluation does not constitute an evaluation impropriety and, since this information did not come to light until well after award, there is no basis for considering it now.  (Calnet, Inc., B-402558.2; B-402558.5; B-402558.7, June 3, 2010)  (pdf)

The protester challenges the agency's evaluation of NanoScale's past performance. Truetech argues that because none of NanoScale's prior contracts involved the production or delivery of A200 sorbent powder or M295 decontamination kits, these contracts are not relevant. Protest at 12, 14; Comments at 11-12. Therefore, the protester contends that NanoScale should have been assigned a past performance rating of high risk or unknown risk. Protest at 12. The protester further contends that the SSA's alternative assessment based on a neutral rating should be given no weight because it is merely an attempt at "'preemptive deployment' of post hoc rationales." Comments at 15.

As a preliminary matter, we need not resolve Truetech's challenge to NanoScale's past performance rating of very low risk. As explained above, the SSA's alternative assessment establishes that she would have selected the proposal submitted by NanoScale, even assuming that all of NanoScale's past performance references were considered to be not relevant. In short, the record establishes that Truetech was not prejudiced even were we to find that the Army unreasonably concluded that NanoScale's past performance references were relevant. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. See McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).  (Truetech, Inc., B-402536.2, June 2, 2010)  (pdf)

Next, Alsalam argues that the Army failed to reasonably evaluate DynCorp's cost proposal, either as part of the agency's initial evaluation, or its reevaluation. We agree with the protester that the record here does not sufficiently establish that the agency reasonably evaluated DynCorp's proposed costs. However, as discussed below, we again think, on this record, that there was no prejudice to Alsalam, because we see no reasonable possibility that correcting the alleged errors would make Alsalam the low-cost offeror.

When an agency evaluates a proposal for the award of a cost-reimbursement contract, an offeror's proposed estimated costs are not dispositive because, regardless of the costs proposed, the government is bound to pay the contractor its actual and allowable costs. FAR sections 15.305(a)(1); 15.404-1(d); Palmetto GBA, LLC, B-298962, B-298962.2, Jan. 16, 2007, 2007 CPD para. 25 at 7. Consequently, the agency must perform a cost realism analysis to determine the extent to which an offeror's proposed costs are realistic for the work to be performed. FAR sect. 15.404-1(d)(1). We review an agency's judgment in this area only to see that the agency's cost realism evaluation was reasonably based and not arbitrary. Hanford Envtl. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 9.

Alsalam primarily argues that, despite the agency's reevaluation, the record does not show whether the agency reasonably evaluated DynCorp's proposed costs for DMA salaries under CLIN X004AA.[9] Specifically, the protester contends that the awardee's proposal does not show whether the costs for CLIN X004AA included certain fringe benefit cost elements required by the solicitation, such as the Saudi insurance known as General Organization for Social Insurance, Defense Base Act insurance, and hardship and housing allowances. See RFP attach. 2, at 4-6. The protester argues that since these costs are not identified in the awardee's proposal, they may not have been included in its costs for this CLIN. Alsalam notes that DCAA report on its cost proposal concluded that, for Alsalam, these costs represented approximately $[deleted]--indicating the potential cost effect on DynCorp's costs. AR, Tab 5.1, DCAA Alsalam Evaluation, at 11.

As part of its reevaluation, the Army prepared a new cost evaluation document. This document primarily reiterates the agency's position that the initial evaluation reasonably found that the awardee's proposed costs for CLIN X004AA contained all of the required cost elements. See AR, Tab 25.2/25.3, Addendum to Final Cost/Price Analysis, at 1. The Army contends that the DCAA reports cited in the initial evaluations also confirm that DynCorp's costs for this CLIN contained the cost elements at issue, and that the Army cost evaluation also verified that the cost elements were included. Price Analyst Response to GAO Questions, Dec. 14, 2009, at 1. The agency argues that the difference between the offerors' costs for this CLIN is due to differences between their profit and general and administrative (G&A) rates. AR, Tab 25.2/25.3, Addendum to Final Cost/Price Analysis, at 1. As discussed above, offerors were required to propose fixed and cost reimbursement CLINS. For CLIN X004AA, the base DMA salaries were established by the solicitation. RFP at 17; attach. 2 at 4-6. Thus, proposed costs should have primarily reflected differences between offerors' profit, indirect rates, and fringe benefit costs.

While it appears possible that the majority of the cost difference between the offerors for this CLIN is explained by the differences between the offerors' profit and G&A rates, the record does not clearly show how or whether the agency reached this conclusion. In this regard, the agency's reevaluation document provides only summary and conclusory remarks regarding whether DynCorp's proposed cost for CLIN X004AA included all of the required cost elements. Although the reevaluation again states that the DCAA report concluded that the cost elements were included in DynCorp's proposal for this CLIN, the DCAA report does not mention the disputed cost elements. Compare Price Analyst Response to GAO Questions, Dec. 14, 2009, at 1, with AR, Tab 5.2, DCAA Report for DynCorp, Jan. 15, 2009. Moreover, despite requests by our Office for specific citations to the record, the Army has not shown that DynCorp's proposal included the disputed cost elements or that the agency evaluated those costs.

Notwithstanding these concerns, we think that, based on the record, there is no possibility of prejudice to Alsalam here because even if DynCorp failed to include the fringe benefit costs, a cost realism adjustment would not overcome the awardee's $11.4 million advantage over the protester's overall price. Specifically, the protester's estimate of the required cost realism adjustments--$[deleted] for CLIN X004AA and $[deleted] under CLINs X004AB and X006AA--would not make Alsalam the lower-priced offeror. Because DynCorp's proposal would remain higher-rated technically, and lower priced, we think that there is no reasonably possibility of prejudice to Alsalam.

The protest is denied.  (Alsalam Aircraft Company, B-401298.4, January 8, 2010)  (pdf)

Under the corporate experience subfactor, offerors were evaluated for demonstrated experience in providing engineering and technical services related to the statement of work. RFP at 59. Among other things, offerors were specifically required to supply three work examples related to surface ship corrosion control post shakedown availabilities, and two examples related to monitoring surface ship shipboard work during an availability period while in a building yard or shipyard. RFP Amend. 4, at 5. The agency found ATS’s proposal unclear as to which of the listed experience information was to be evaluated for the work examples requested. During discussions, the agency advised ATS that “ATS provides corporate experience information . . ., but does not specify which information is to be used for the work examples requested.” Discussion Question 9. In its final proposal revision (FPR), ATS provided an explanation of how the information in its proposal related to the work examples requested. Thereafter, in evaluating ATS’s FPR, the agency found that the listed experience was not highly relevant. ATS asserts that the discussions in this area were not meaningful because the record shows that, during the initial evaluation, one of the evaluators made comments that were not communicated to ATS.

This argument is without merit. The statements of the individual evaluator to which ATS refers were not carried forward into the consensus evaluation, which formed the basis for ATS’s score under the corporate experience subfactor, and upon which the discussion questions were based. Accordingly, the evaluator’s comments do not provide a basis for questioning the adequacy of discussions with ATS. See generally Lakeside Escrow & Title Agency, Inc., B-310331.3, Jan. 7, 2008, 2008 CPD para. ­__ (where individual evaluator comments are not included in consensus evaluation report, objections to statements of evaluator are irrelevant). In any case, ATS’s proposal received 75 total technical points, while the awardees’ proposals received 95.7 and 85.8 technical points. Under the corporate experience subfactor, ATS’s FPR received 19 of the 25 available points. Final Evaluation, Subfactor B-1. This being the case, even if ATS’s proposal received a perfect score of 25 points for corporate experience, its total evaluated score would only increase to 81 points. Since, even under this scenario, ATS’s proposal would be rated lower technically than the two awardees’ proposals, and its price would remain higher than both awardees’ prices, ATS would not be in line for award even if it prevailed on this aspect of its protest. Under these circumstances ATS was not prejudiced by any failure by the agency to provide meaningful discussions. G&N, L.L.C., B-285118 et al., July 19, 2000, 2000 CPD para. 3 at 11.  (Alliance Technical Services, Inc., B-311329; B-311329.2, May 30, 2008) (pdf)
 

In September 2006, the Navy announced its intention to conduct a public-private competition pursuant to OMB Circular A-76 for performance of non-guard security support services at government installations nationwide; these services are currently being performed by approximately 460 civilian and 1480 military personnel. Solicitation No. N69450-07-R-0054 was issued in connection with this pending competition, and Mr. Myatt was designated as the ATO responsible for developing and submitting an agency tender pursuant to the solicitation requirements.  On February 8, 2008, prior to the solicitation’s initial closing date, the ATO submitted a protest to this Office, challenging certain provisions of the solicitation which mandated a particular method for calculating the costs of performance by the government’s most efficient organization (MEO). The ATO maintained that the solicitation’s cost calculation provisions were illogical and unfair. Following submission of that protest, this Office conducted various telephone conference calls with the ATO, the ATO’s counsel, agency counsel, and the contracting officer. During these calls, agency counsel advised our Office that the agency had extended the solicitation’s closing date to March 20, and was further considering whether it would amend the solicitation provisions regarding calculation of MEO costs. Accordingly, we dismissed the ATO’s February 8 protest. Clark E. Myatt, B-311234, Mar. 6, 2008. On March 19, the ATO submitted this protest, again challenging, among other things, the solicitation’s cost methodology for comparing the MEO’s costs with private offerors’ costs, and noting that the agency had neither addressed the ATO’s previously identified concerns, nor further extended the solicitation’s March 20 closing date.

By letter to our Office dated April 3, the agency states that it did not receive any acceptable private sector offers in response to the solicitation. Accordingly, the agency maintains that “the MEO cannot suffer any competitive prejudice” from the contested terms of the solicitation under which the competition was to be conducted. We agree. In situations where no acceptable private sector offers are submitted, OMB Circular A-76 directs that the agency must do one of two things: revise and reissue the solicitation, or implement the agency tender. OMB Circular A-76, attach. B, sect. D.4.d (May 29, 2003). Under either alternative, there is no prejudice to the ATO resulting from the terms of the previously issued solicitation.[3] Since competitive prejudice is a necessary element of any viable protest, we have no basis to further review the ATO’s allegations. See, e.g., OK Produce; Coast Citrus Distrib., B-299058, B‑299058.2, Feb. 2, 2007, 2007 para. CPD 31 at 6; CRAssociates, Inc., B‑282075.2, B‑282075.3, Mar. 15, 2000, 2000 CPD para. 63 at 10. (Clark E. Myatt, Agency Tender Official, B-311234.2, April 15, 2008) (pdf)

Prejudice is an essential element of every viable protest and, where it is not demonstrated or otherwise evident, we will not sustain a protest allegation, even where the record shows that the agency’s actions were arguably improper. GC Servs. Ltd. P’ship, B-298102, B-298102.3, June 14, 2006, 2006 CPD para. 96 at 7-8; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1681 (Fed. Cir. 1996). PM was not prejudiced by the alleged evaluation improprieties. While PM asserts that its proposal should have received a total technical score of 94.9 points, it does not challenge Four Seasons’s proposal’s score of 98 points, or the agency’s substantive evaluation findings supporting its conclusion that Four Seasons’s proposal was technically superior. Under these circumstances, even if we agreed with PM regarding the agency’s evaluation of its proposal, there would be no basis for questioning the award, since Four Seasons’s proposal still would be technically superior to PM’s (or, at worst, technically equivalent), and lower cost. These assertions thus do not provide a basis for sustaining the protest.

(Sections deleted)

In any case, as noted, PM’s evaluated cost was $71,351,906, while the awardee’s was $68,122,022.65, for a difference of $3,229,883.35, or approximately 4.4 percent. The record also shows that, in preparing its proposal, PM applied a [deleted] percent escalation rate for its SCA labor costs, AR exh. F, at 3, while Four Seasons applied a [deleted] percent escalation rate. Agency Supplemental Submission, Jan. 25, 2008, at 6. Given the approximately 4.4 percent difference between the firms’ prices, the record shows that the slight variance between their escalation rates ([deleted] percent) could not have affected the relative standing of their cost proposals. Accordingly, PM was not prejudiced by the escalation provision. GC Servs. Ltd. P’ship, supra. (PM Services Company, B-310762, February 4, 2008) (pdf)

We find that SERAPH was not prejudiced by the alleged improper evaluation of its two key personnel since, even if we agreed with SERAPH, it would not be in line for award. More specifically, the contemporaneous evaluation record shows that SERAPH’s proposal was not selected for award due to the agency’s evaluation conclusion that the proposal represented a moderate risk under the understanding of work evaluation factor, and not because the agency determined that SERAPH’s proposed personnel had inadequate experience. In this regard, the agency specifically stated in the competitive award memorandum that SERAPH’s proposed staff has the experience and training necessary to perform the contract. AR, Tab 9, at 15. While the memorandum includes the comments (stated above) concerning the two proposed personnel, the agency nevertheless concluded that “the noted risks are not significant to warrant an overall elevated risk rating.” Id. In other words, SERAPH’s green/low risk rating under the relevant past experience/proposed personnel factor was unaffected by the agency’s observations regarding the two personnel. (SERAPH Inc., B-297452, January 12, 2006) (pdf)

We will deny a protest where, notwithstanding that a solicitation overstated an agency’s requirements, the protester has not shown competitive prejudice; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award (or, in these circumstances, submitting an acceptable quotation). McDonald‑Bradley, B‑270126, Feb. 8, 1996, 96‑1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, the Navy has only supported a requirement for a single sample report, not the multiple sample reports specified in the RFQ. Nevertheless, and even after our Office identified the issue, IVI has made no attempt to show that it could have met the agency’s requirement for a single report, regardless of the time provided. As such, IVI has not been competitively prejudiced by the requirement for multiple reports in the RFQ. (Information Ventures, Inc., B-297225, December 1, 2005) (pdf)

While, as noted above, the contemporaneous documentation and hearing record evidence that the unacceptability of Cogent’s proposal under the design subfactor was based upon a number of evaluated weaknesses, the record also shows that the PEB considered some weaknesses to be more material than others. That is, the hearing testimony evidenced that the PEB, in its contemporaneous deliberations, considered weaknesses assessed--in Cogent’s design--with respect to its proposed scanner and its peak loading factor to be more significant than other identified weaknesses, even though the PEB did not specifically rank weaknesses.[10] See, e.g., TR at 47-50. Moreover, the Army admitted in its report that some of the weaknesses identified in the final consensus evaluation report actually concerned Cogent’s earlier proposals and not the firm’s final revised proposal. See AR at 29-34. The record shows that removing Cogent’s proposed scanner from the list of evaluated weaknesses under the design subfactor would require the agency to reconsider whether Cogent’s proposal remained unacceptable in light of the other evaluated weaknesses. Accordingly, we find from this record that there is a reasonable possibility, under a fair evaluation of Cogent’s final proposal under this subfactor, that Cogent’s proposal could be found acceptable. If Cogent’s proposal were found acceptable, the agency then would be required to perform a price/technical tradeoff to determine whether Cogent’s lower proposed price reflected the best value to the government.  (Cogent Systems, Inc., B-295990.4; B-295990.5, October 6, 2005) (pdf)

Med Optical also asserts that the agency’s evaluation of its proposal, in the areas of personnel qualifications and demonstrated capability, was unreasonable. We need not address these issues since the record shows that the protester was not prejudiced by any alleged errors in these areas. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-290126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, even if Med Optical had received perfect scores in both areas where it challenges the agency’s evaluation, its proposal would still be lower rated technically and substantially higher priced than the awardee’s. Accordingly, Med Optical would not be in line for award even if it prevailed in its challenge to the evaluation of its proposal. Marwais Steel Co., B‑254242.2; B-254242.3, May 3, 1994, 94-1 CPD 291 at 7. (Med Optical, B-296231.2; B-296231.3, September 7, 2005) (pdf)

Here, we agree with DOE that the record establishes that even if RCS were correct in its assertions, there was no possible prejudice to the protester. We first note that RCS has not protested the evaluation of LATA/Parallax's proposal or the evaluation of its own proposal under the key personnel evaluation criterion, and has abandoned its protest concerning the evaluation under the experience and past performance evaluation criteria. With regard to the remainder of RCS's protest, the record reflects that the agency downgraded the protester's proposal under the technical approach, integration and schedule, and project and risk management criteria because of the agency's determination that the protester's proposed approach posed certain risks. However, even if RCS had received the maximum score under each of these criteria, its overall score would have increased to only 835 points, which is still lower then the awardee's proposal's technical score of 860 points. [4] Given this, the fact that the protester's evaluated cost was47 million higher than the awardee's, and that the protester has made no claim that it would have been able to reduce its proposed costs, we fail to see how the protester was prejudiced by the alleged errors in the agency's evaluation, or how the protester would have a reasonable possibility for award if the solicitation had been amended and the protester given an opportunity to submit a proposal with a different technical approach "that would have complied" with what the protester argues was "the specified design." See EBA Ernest Bland Assoc. , B-270496, Mar. 13, 1996, 96-1 CPD 148 at 6. (Restoration and Closure Services, LLC, B-295663.6; B-295663.12, April 18, 2005) (pdf)

In essence, UVC was already competing with an understanding that a schedule as long as the 360-day schedule that UVC proposed would be acceptable; therefore, UVC was not competitively prejudiced by the agency's acceptance of LS's lower-priced proposal and a delivery schedule of 279 days, which was still shorter than UVC's proposed schedule. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions; that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). Although UVC argues that allowing LS to have a longer schedule amounts to unequal treatment, UVC has failed to demonstrate competitive prejudice with respect to this ground of protest. (United Valve Company, B-295879, April 25, 2005) (pdf)

It is not improper for an agency to accept an expired offer without reopening negotiations where acceptance is not prejudicial to the competitive system. Krug Life Scis., Inc. , B-258669.2, Feb. 22, 1995, 95-1 CPD 111 at 4; The Fletcher Constr. Co., Ltd. , B-248977, Oct. 15, 1992, 92-2 CPD 246 at 6. Even where, as here, the acceptance period has expired on all offers, an agency may allow the successful offeror to waive the expiration of its proposal acceptance period without reopening negotiations and make award on the basis of the offer as submitted. The Fletcher Constr. Co., Ltd. , supra . Here, although the acceptance of Gentex's expired offer permitted Gentex to waive the expiration of the offer, because no changes were made to Gentex's proposal, this waiver did not prejudice the competitive system or provide Gentex with an unfair competitive advantage. Although Scot asserts that it can now provide a lower price to the agency, the agency was not required to reopen the competition when proposals expired to allow the offerors to revise their proposals. See BioGenesis Pac., Inc. , B-283738, Dec. 14, 1999, 99-2 CPD 109 at 6 (agency not required to consider protester's revised proposal submitted after proposals expired but could make award based on unchanged expired proposals). (Scot, Inc., B-295569; B-295569.2, March 10, 2005) (pdf)

In short, we agree with SBA that it erred in considering UEA for a Certificate of Competency (COC) because the COC process is not applicable to noncompetitive 8(a) acquisitions. SBA Report at 2; SBA Supplemental Report at 1-2. Although SBA failed to follow applicable regulations once CNCS determined that UEA was not responsible and referred the matter to SBA, we fail to see, and UEA has not explained, how it was prejudiced by this error. That is, the matter of UEA's responsibility was considered by SBA as part of its COC process, with SBA determining not to issue a COC to UEA. As such, it is clear from the record that SBA ultimately agreed with CNCS's determination regarding UEA's responsibility, with the end result remaining the same--CNCS does not contract with SBA for performance of the services by UEA. In short, whether the matter of UEA's responsibility was considered by SBA through the process provided for by the regulations that contemplates a determination as to whether SBA agrees with the procuring agency's nonresponsibility determination, or whether the matter of UEA's responsibility was considered by SBA through the COC process, nothing in the record indicates that the process or result would have differed in a manner that would have favored UEA--SBA considered the matter, and concluded that it did not disagree with CNCS's nonresponsibility determination. Thus, it is apparent that SBA would not have appealed the CNCS determination not to contract with UEA under the 8(a) program, which was the only appropriate action under applicable regulations that could be taken to contest the procuring agency's determination here. (United Enterprise & Associates, B-295742, April 4, 2005)  (pdf)

In addressing organizational conflicts of interest, our Office has held that, where the record establishes that a conflict exists, we will presume that the protester was prejudiced, unless the record establishes the absence of prejudice. See The Jones/Hill Joint Venture , B-286194.4 et al. , Dec. 5, 2001, 2001 CPD 194; TDF Corp. , B-288392, B288392.2, Oct. 23, 2001, 2001 CPD 178. Similarly, where, as here, the record establishes that a procurement official was biased in favor of one offeror, and was a significant participant in agency activities that culminated in the decisions forming the basis for protest, we believe that the need to maintain the integrity of the procurement process requires that we sustain the protest unless there is compelling evidence that the protester was not prejudiced. See Department of the Air Force--Request for Recon. , B-234060, B234060.2, Sept. 12, 1989, 89-2 CPD 228. As discussed below, the agency has failed to provide compelling evidence that Druyun's bias in favor of Boeing did not influence the various decisions leading to the award of the SDD contract to Boeing. (Lockheed Martin Corporation, B-295402, February 18, 2005) (pdf)

We will not sustain a protest absent a showing of competitive prejudice, that is, unless the protester demonstrates that, but for the agency's actions, it would have a substantial chance of receiving award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, CourtSmart has not stated or shown that it could or would have modified its quotation had it known of the agency's interpretation of the "fieldtested" requirement. Although CourtSmart argues that it was prejudiced because it was not given an opportunity to submit a revised quotation, [7] it does not state that the revisions it sought to make addressed the "field-tested" requirement. To establish prejudice in circumstances such as here, the protester must show that it would have submitted a different quotation that would have had a reasonable possibility for award had it known of the agency's interpretation of this provision. See Geo-Seis Helicopters, Inc. , B-294543, Nov. 22, 2004, 2004 CPD ___ at 3-4; Brown & Root, Inc. and Perini Corp., a joint venture , B270505.2, B270505.3, Sept. 12, 1996, 962 CPD 143 at 10-11. (CourtSmart Digital Systems, Inc., B-292995.8, December 9, 2004) (pdf)

With regard to AVCARDs protest of the evaluation and source selection decision, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agencys actions, it would have had a substantial chance of receiving the award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3. Here, the agency rated AVCARDs proposal lower than MSCs under all of the non-price evaluation factors. Given that AVCARDs proposal was significantly higher priced than MSCs, in order to prevail in its protest, AVCARD would have to demonstrate that the agency should have rated AVCARDs proposal higher than MSCs proposal in at least one of the non-price evaluation areas. Based on our review of the record, AVCARD cannot demonstrate this, and therefore cannot establish the requisite prejudice. (AVCARD, B-293775.2, December 30, 2004) (pdf)

SWR asserts that the agency improperly failed to take into account the relative weights of the evaluation factors in scoring the proposals. The agency concedes that it arrived at total evaluation scores for the proposals by averaging the factor and subfactor scores without taking into account the weights of the factors and subfactors. However, there is no basis for finding that correctly weighted scoring would have had any significant impact on the award decision. For example, the agency demonstrates in its report that under one reasonable weighting scheme the protester's total score would have increased from 77 to 78.2 points, while the awardee's total score would have increased from 94 to 94.6. AR, Tab 23, at 1-2. SWR questions the weighting scheme the agency uses, but does not identify any other scheme that would significantly change the scoring to SWR's advantage. Indeed, since Demosthenes's proposal was scored significantly higher than SWR's under every individual evaluation factor and subfactor, it is reasonable to conclude that its rating would remain significantly higher than the protester's under any rational scheme. We conclude that SWR has failed to show that it was competitively prejudiced by the agency's error; our Office will not sustain a protest absent a showing of such prejudice. See McDonald-Bradley , B270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). (SWR, Inc., B-294835; B-294835.2, December 20, 2004) (pdf)

Although we recognize that it is the agency's obligation to ensure that prospective contractors are registered in the CCR database before award, see FAR 4.1102(a), Kloppenburg has failed to establish that it was prejudiced by the award to Alutiiq before the firm's Chesapeake office was registered. Competitive prejudice is necessary before we will sustain a protest; where the record does not demonstrate that the protester would have had a reasonable chance of receiving award but for the agency's actions, we will not sustain a protest, even if deficiencies in the procurement process are found. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, DoDEA made award to Alutiiq only after confirming that Alutiiq's Chesapeake office would promptly register in the CCR database, and Alutiiq did so. Although the agency should have awaited the registration of Alutiiq's Chesapeake office in the CCR database before making award, Kloppenburg has failed to establish that it was prejudiced by this error. See Graves Constr., Inc. , B-294032, June 29, 2004, 2004 CPD 135 at 3. (Kloppenburg Enterprises, Inc., B-294709, December 10, 2004) (pdf)

Cross Match asserts that incorporating the noncompeted items at the quoted prices into Identix's BPA was inconsistent with the RFQ requirement that the prices for these items be equal to or lower than the prices for the evaluated items. We agree. DHS concedes that Identix's quoted pricing for some of the noncompeted items from Identix's GSA schedule exceeded the pricing for the evaluated items, but asserts that this was not a violation because the noncompeted item pricing did not need to meet the "equal or less" requirement until after the negotiation of pricing, which had not yet occurred, and because no orders had been issued. DHS Comments, June 8, 2004, at1819; DHS Comments, June 15, 2004, at 2. However, Identix's quotation was noncompliant with that pricing restriction when the BPA was awarded to Identix on September 30. While DHS may have intended subsequently to modify the BPA to remove the improper pricing, this does not alter the fact that the BPA as awarded included noncompliant pricing. As a result, the issuance of the BPA was inconsistent with the basis upon which quotations were issued and thus improper. It is generally improper for an agency to solicit quotations on one basis and then make award on a materially different basis. See Cellular One , B-250854, Feb. 23, 1993, 93-1 CPD 169 at 4; Ann Riley & Assocs., Ltd. , B241309.2, Feb. 8, 1991, 91-1 CPD 142 at4. This is the general rule, and it is a fundamental one in our federal procurement system, but it may be waived if competitors are not prejudiced thereby. See Cellular One , supra ; Ann Riley & Assocs., Ltd. , supra . Similarly, our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's improper actions, it would have had a substantial chance of receiving award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F. 3d 1577, 1581 (Fed. Cir. 1996). Cross Match argues that it was prejudiced because, by quoting pricing for the noncompeted items from Identix's GSA schedule that was higher than permitted by section2.1, Identix was in a position to gain an improper advantage by shifting its costs to the unevaluated pricing and reducing its evaluated pricing. (Cross Match Technologies, Inc., B-293024.3; B-293024.4, June 25, 2004) (pdf)

The parties agree that, during discussions, the protester suggested the possibility of savings through the use of smaller concrete blocks. The agency considered this suggestion and determined that it could be acceptable. It then held subsequent discussions in which the agency concedes that the "CO [contracting officer] apparently raised the block size issue with the other offerors as part of the discussions seeking cost savings in the precast concrete portion of the Project." Memorandum of Law at 302. The protester contends that the use of the smaller sized block was one of unique innovation that should not have been disclosed to other offerors during discussions. The agency contends that use of the small block size involved a change in the specifications that the agency was required to communicate to the other competitors in order to uphold fair competition. It is not necessary to resolve this dispute, however; if the protester is correct, it has nonetheless failed to demonstrate competitive prejudice. Even assuming that the disclosure were improper, the agency argues that the protester suffered no prejudice because both the protester's initial and final proposals are based on using the concrete block sizes described in the RFP, not the smaller block sizes that the protester mentioned during discussions. Memorandum of Law at 305-06. The agency also submits that the awardee, similarly, did not propose the use of smaller concrete blocks in either its original or revised proposals. Id. at 305. Thus the agency's actions in disclosing to other competitors the possibility of cost savings through the use of smaller concrete blocks had no effect on the protester's chance of receiving the award; had no disclosure occurred, the protester still would not have received the award. (DuRette Construction Company, Inc., B-294379, September 15, 2004) (pdf)

Cross Match asserts that incorporating the noncompeted items at the quoted prices into Identix's BPA was inconsistent with the RFQ requirement that the prices for these items be equal to or lower than the prices for the evaluated items. We agree. DHS concedes that Identix's quoted pricing for some of the noncompeted items from Identix's GSA schedule exceeded the pricing for the evaluated items, but asserts that this was not a violation because the noncompeted item pricing did not need to meet the "equal or less" requirement until after the negotiation of pricing, which had not yet occurred, and because no orders had been issued. DHS Comments, June 8, 2004, at1819; DHS Comments, June 15, 2004, at 2. However, Identix's quotation was noncompliant with that pricing restriction when the BPA was awarded to Identix on September 30. While DHS may have intended subsequently to modify the BPA to remove the improper pricing, this does not alter the fact that the BPA as awarded included noncompliant pricing. As a result, the issuance of the BPA was inconsistent with the basis upon which quotations were issued and thus improper. It is generally improper for an agency to solicit quotations on one basis and then make award on a materially different basis. See Cellular One , B-250854, Feb. 23, 1993, 93-1 CPD 169 at 4; Ann Riley & Assocs., Ltd. , B241309.2, Feb. 8, 1991, 91-1 CPD 142 at4. This is the general rule, and it is a fundamental one in our federal procurement system, but it may be waived if competitors are not prejudiced thereby. See Cellular One , supra ; Ann Riley & Assocs., Ltd. , supra . Similarly, our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's improper actions, it would have had a substantial chance of receiving award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F. 3d 1577, 1581 (Fed. Cir. 1996). Cross Match argues that it was prejudiced because, by quoting pricing for the noncompeted items from Identix's GSA schedule that was higher than permitted by section2.1, Identix was in a position to gain an improper advantage by shifting its costs to the unevaluated pricing and reducing its evaluated pricing. We find no reasonable possibility of prejudice to Cross Match.  (Cross Match Technologies, Inc., B-293024.3; B-293024.4, June 25, 2004)  (pdf)

Where a proposal deviates from a specification by a negligible amount, the agency may waive the requirement, so long as it did not prejudice other vendors. Gulf Copper Ship Repair, Inc., B-292431, Aug. 27, 2003, 2003 CPD ¶ 155 at 4 (deviation of 1 inch water depth specification properly waived by agency); Magnaflux Corp., B-211914, Dec. 20, 1983, 84-1 CPD ¶ 4 at 3-4 (agency permitted to waive deviation from specification which was minor and did not result in prejudice); Champion Road Mach. Int’l Corp., B-200678, July 13, 1981, 81-2 CPD ¶ 27 at 4 (deviation of two horsepower is minor and should have been waived by agency where price, quantity, quality, and delivery were not affected). In our view, since the approximately one-half mile deviation from the 25-mile requirement appears minor on its face and, according to SSA, did not diminish the purpose of the restriction, it could reasonably be viewed by SSA as negligible. The deviation therefore was waivable, so long as First Federal, the only other vendor in the competition, was not prejudiced. There is no evidence of competitive prejudice. In this regard, while First Federal asserts that the waiver gave ISC an “unfair competitive advantage,” (Protest at 9), it does not show how it would have altered its proposal to improve its competitive standing had it been given an opportunity to respond to the relaxed requirement. See Copper Ship Repair, Inc., supra. For example, it does not assert that knowledge of the relaxation would have affected its price or the location of its proposed facility. Given the absence of any evidence of prejudice to First Federal, we conclude that the agency had a defensible legal position and, thus, that the protest was not clearly meritorious. It follows that there is no basis to recommend reimbursement of protest costs in this case. (First Federal Corporation--Costs, B-293373.2, April 21, 2004) (pdf)

Contracting agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. RS Info. Sys., Inc., B-287185.2, B-287185.3, May 16, 2001, 2001 CPD ¶ 98 at 4. Where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee’s price has been exposed. Strand Hunt Constr., Inc., B-292415, Sept. 9, 2003, 2003 CPD ¶ 167 at 6. We have recognized a limited exception to that rule where the record establishes that there was no impropriety in the original evaluation and award, or that an actual impropriety did not result in any prejudice to offerors, reopening the competition after prices have been disclosed does not provide any benefit to the procurement system that would justify compromising the offerors’ competitive positions. Hawaii Int’l Movers, Inc., B‑248131, Aug. 3, 1992, 92-2 CPD ¶ 67 at 6, recon. denied, Gunn Van Lines; Dept. of the Navy--Recon., B‑248131.2, B‑248131.4, Nov. 10, 1992, 92-2 CPD ¶ 336. Here, while the agency correctly determined that there was a deficiency in the RFP, there is nothing in the record to establish, and the agency has not shown, a reasonable possibility that any offeror was prejudiced by the deficiency. In short, the record does not establish that the defective solicitation resulted in the reasonable possibility of prejudice to any of the offerors. Thus, given that SCG’s competitive position has been compromised by disclosure of its price, there is no benefit to the procurement system that would justify reopening the competition. Hawaii Int’l Movers, Inc., supra. Accordingly, we sustain the protest. By letter of today to the Secretary of Homeland Security, we are recommending that SCG’s award be reinstated. We also recommend that the agency reimburse SCG its costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2003). SCG’s certified claim for costs, detailing the time spent and the costs incurred, must be submitted to the agency within 60 days of receiving of our decision. 4 C.F.R. § 21.8(f)(1). (Security Consultants Group, Inc., B-293344.2, March 19, 2004) (pdf)

Nowhere in its protest submissions does Frasca allege that the “bundled” requirements precluded it from having a reasonable chance for award. To the contrary, it identified in its response to the “sources sought” notice and in its past performance proposal two firms that it affirmatively stated it would be teaming with to provide the training portion of the work, and provided past performance information concerning one of these firms, never suggesting to the Navy that the teaming arrangements had not been finalized or that bundling was impeding its ability to compete. Although Frasca now asserts that the teaming arrangements with these firms “did not come to final fruition,” Frasca does not contend that the discussions failed due to the bundling restrictions. Protester's Comments at 6. Rather, it complains only that it did not have sufficient time to submit a proposal when it was provided another opportunity to compete under the amended RFP, because Frasca had discontinued discussions with its potential teaming partners when its past performance proposal was rejected in October as untimely, and the Navy had established a short deadline for proposal submissions. Thus, the record shows that to the extent Frasca was unable to compete, it was due to the breakdown of teaming discussions caused by Frasca's untimely proposal submission, not by bundling. (Frasca International, Inc., B-293299, February 6, 2004) (pdf)

In this instance, while the protester argues that the bundling would adversely affect small business firms, many of whom are currently performing work included in the bundled procurement, the protester has failed to demonstrate that the consolidation significantly inhibits or precludes its ability to compete. In fact, FSI claimed that it can perform the entirety of the bundled requirements. In this regard, FSI stated that it responded to the “sources sought” notice “with full confidence that we could perform all aspects of the contract and more” and that “FSI is very qualified for this BPA,” and the record shows that FSI, through SBA, attempted to noncompetitively obtain this work under the 8(a) program. Protest at 8; Protester's Comments at 8. We conclude, therefore, that the protester has not made a showing of competitive prejudice as a result of the bundling of the agency's office supply requirements.  (Future Solutions, Inc., B-293194, February 11, 2004) (pdf)

D.N. also complains that the evaluation of contractor expertise was unequal. Here, D.N. argues that neither offeror had all of the required certifications, which were necessary for a blue rating, and thus Daston should only have received a purple rating like D.N.[8] Although we agree with D.N. in this regard, we see no prejudice to D.N. from this error. Daston was still rated superior to D.N. in the two more important technical factors, and was lower in price, so even if the contractor expertise ratings were made equal, there is no reasonable basis to conclude that D.N.’s proposal would have had a reasonable probability of being selected for award. See J.A. Jones/Bell, A Joint Venture, B-286458, B-286458.2, Dec. 27, 2000, 2001 CPD ¶ 17 at 4 n.1.  D.N. also contends that the Army failed to raise during discussions that the size of past projects was a concern in the evaluation of past performance, or that its subcontractor’s past performance under military contracts was limited to hardware support. Although these issues were not specifically raised during discussions, D.N. has not shown that it was prejudiced. It does not argue that it would have, or could have, identified contracts of a larger size, or that its subcontractor’s references would have included other than contracts for hardware support had these issues been raised, or that as a result of discussions its proposal would have been found sufficiently superior to Daston’s lower priced proposal to be selected for award. Continental Serv. Co., B‑271754, B‑271754.2, July 30, 1996, 96-2 CPD ¶ 65 at 6. (D.N. American, Inc., B-292557, September 25, 2003)  (pdf)

Nevertheless, even if SPAWAR should not have accepted Dell’s quotation as submitted and later permitted the firm to “correct” it via modification of the BPA, there is no basis for concluding that the agency’s actions prejudiced GTSI. In this regard, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. Parmatic Filter Corp., B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD ¶ 71 at 11; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). GTSI has not shown, nor does the record otherwise indicate, that it was prejudiced with respect to the monitor issue. The evaluated price of GTSI’s quotation ($[DELETED]) already included the price for the compliant monitors. Adjusting Dell’s price upward (to $[DELETED]) to reflect the higher price (an additional $[DELETED]) for the compliant Dell M992 19-inch and the Sony GDM-FW900 24-inch monitors as indicated in Dell’s February 17 response, still leaves the award price lowest by a substantial margin ($[DELETED]). Agency Memorandum to File, May 6, 2003, at 3. Further, even if SPAWAR had noted the ambiguity in Dell’s quotation before award and had reopened discussions to resolve it--which necessarily would have given GTSI the opportunity to revise its price--there is no basis for concluding that it would have lowered its price sufficiently to displace Dell as the low-priced vendor. Given Dell’s advantage under the non-price factors, we are unable to find that GTSI was prejudiced. (GTSI Corp., B-292298; B-292298.2; B-292298.3, August 14, 2003) (pdf)

That said, where an agency determines that an item other than the one specified in an RFQ will meet its needs, it generally should amend the RFQ and reopen the competition. U.S. Technology Corp., B-224372, Oct. 2, 1986, 86-2 CPD ¶ 383 at 3. We will sustain a protest objecting to an agency’s failure to amend an RFQ to clarify that products other than a specified one will be considered only if the protester establishes a reasonable possibility that it was prejudiced by the agency’s failure to amend, however; that is, where the protester offers some evidence that had it known of the potential for competition, it would have altered its quotation to its competitive advantage. See Datastream Sys., Inc., B-291653, Jan. 24, 2003, 2003 CPD ¶ 30 at 6. We have recognized the possibility of prejudice where a protester that was the only vendor offering the product specified in an RFQ alleges that it would have lowered its price had it been aware of the potential for competition, and where the vendor offering the specified product alleges that it could have offered a different, lower-priced, acceptable product had it been on notice that the agency would consider equivalent items. U.S. Technology Corp., supra, at 3. (Zarc International, Inc., B-292708, October 3, 2003)  (pdf)

The protester has made a prima facie showing of similarity between the work performed under the combat arms range project and the project to be performed here, which the Air Force has neither taken issue with nor attempted to rebut.  Even assuming that the agency should have regarded the combat arms range project as relevant and considered it in evaluating the protester's past performance, however, we see no basis to conclude that consideration of this contract would have resulted in an increase in Wadsworth's past performance rating. In this regard, prejudice is an essential element of a viable protest, and we will sustain a protest only where a reasonable possibility of prejudice is evident from the record. Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD ¶ 379 at 5-6. Here, Wadsworth's performance on the missile alert facility project, which was over six times greater in dollar value than the combat arms range project, was rated as “at best” satisfactory. In addition, only about a quarter of the value of the combat arms contract was for work similar to the work to be accomplished here, meaning that while the contract was relevant, its relevance was limited. In light of these factors, we see no reasonable possibility that the contracting officer would have raised the protester's overall past performance rating to very good based on its performance on the latter project. (Wadsworth Builders, Inc., B-291633, January 24, 2003)  (txt version)

The record here, which consists of, among other things, the individual evaluator score sheets for the oral presentations, does not contain any evidence that the agency's evaluation of Innovative Management's oral presentation was affected by Innovative Management's use of copied transparencies rather than originals. For example, while the record provides numerous statements regarding the strengths and weaknesses of Innovative Management's proposal and oral presentation, there is no mention or any other indication that any of these statements resulted from, or were somehow affected by, Innovative Management's use of copied transparencies. Accordingly, we fail to see how Innovative Management was prejudiced by the agency's alleged error in not having Innovative Management's original transparencies available for use during its oral presentation.  (Innovative Management, Inc., B-291375, November 20, 2002)  (txt version)

We recognize that it could be argued that the failure to exclude a firm with an alleged conflict of interest from a competition is a defect in a solicitation that should be challenged prior to the submission of proposals or quotations.  See 4 C.F.R. § 21.2(a)(1) (2002).  Solicitation provisions, however, are not generally the vehicle for excluding firms with a conflict of interest from competing for award; rather, conflicts are generally handled on a case-by-case basis without public notice through the solicitation.  Moreover, treating protests such as this one as premature may avoid unnecessary litigation, since the allegedly conflicted firm may not be the eventual awardee, either because it loses the competition or because the agency ultimately concludes that the firm has an impermissible conflict of interest.  See Saturn Indus.--Recon., B-261954.4, July 19, 1996, 96-2 CPD ¶ 25 at 5.  Unless the firm with the alleged conflict of interest is actually selected for award, the protester has not suffered any competitive prejudice; we will not sustain a protest absent a showing of such prejudice.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3 d 1577, 1581 (Fed. Cir. 1996).  (REEP, Inc., B-290688, September 20, 2002)

Competitive prejudice is a prerequisite to sustaining a protest.  Where the record does not demonstrate that, but for the agency's actions, the protester would have had a reasonable chance of receiving the award, our Office will not sustain a protest, even if a deficiency in the procurement is found.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).  Based on our review of the record, we find that the denial of the Blue Team's request to use a decommissioned DD 963 destroyer as an at-sea test platform did not result in competitive prejudice to the protester so as to warrant sustaining its protest in this regard.  (Bath Iron Works Corporation, B-290470; B-290470.2, August 19, 2002)

The record shows, as discussed below, that the agency’s actual needs were for three separate contractors to perform the three solicited sales. If the RFP did not sufficiently indicate that three awards to three separate contractors was contemplated, it would be defective, in that multiple awards to the same contractor under the RFP would not satisfy the agency’s actual need to limit each awardee to a single task order. However, under an amended RFP with this defect eliminated, METEC could not receive any additional task orders beyond the one that it already has. Accordingly, the protested awards under this RFP did not prejudice METEC. See Plum Run, B-256869, July 21, 1994, 94-2 CPD ¶ 38 at 6-7 (protester was not prejudiced by an award under a defective solicitation where the award would remain the same if the agency amended the solicitation and the protester revised its proposal); see also Recon Optical, Inc.; Lockheed-Martin Corp., Fairchild Sys., B-272239, B-272239.2, July 17, 1996, 96-2 CPD ¶ 21 at 3-4 (protesters do not have the direct economic interest necessary to protest awards to each other where the solicitation provides for multiple awards, the protesters received the fullest awards possible, and it would not be able to obtain an additional stake in the procurement, even if their protests were sustained).  (The METEC Group, B-290073; B-290073.2, May 20, 2002 (pdf))

SOS is correct that, where the relative weights of subfactors are not disclosed in the RFP, the subfactors are understood to be of equal importance to each other. North-East Imaging, Inc., B-256281, June 1, 1994, 94-1 CPD ¶ 332 at 2. However, competitive prejudice is an essential element of every viable protest. Geonex Corp., B-274390.2, June 13, 1997, 97-1 CPD ¶ 225 at 4. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d. 1577, 1581 (Fed. Cir. 1996).  (SOS Interpreting, Ltd., B-287477.2, May 16, 2001)

Protester, a small disadvantaged business (SDB), was not prejudiced by agency's failure to apply 10-percent SDB evaluation preference provided for in solicitation, where (1) awardee was SDB, against which the preference would not apply in any case, and (2) there is no basis to conclude that protester inflated its bid price in reliance on application of preference.  (Si-Nor, Inc., B-286910, January 5, 2001)

We dismiss the protest as to this allegation because there is no showing that MCS was prejudiced by the consolidation of the requirements. Competitive prejudice is an essential element of every viable protest. Lithos Restoration Ltd., B-247003.2, 92-1 CPD para. 379 at 5. Where the record does not demonstrate that, but for the agency's actions, the protester would have had a reasonable chance of receiving the award, our Office will not sustain a protest, even if a deficiency in the procurement is found. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, although MCS strenuously argues that the claimed benefits of the agency's consolidated procurement approach are illusory and/or do not warrant consolidation, the protester has failed to demonstrate that the consolidation significantly inhibits or precludes its ability to compete. On the contrary, MCS vigorously argues that the requirements do not differ significantly in character from its current food service contracts, and it maintains that it can perform the consolidated requirement.  (MCS Management, Inc., B-285813; B-285882, October 11, 2000)

Turning to the protester's specific argument, while solicitation amendments generally must be issued in writing in order to afford firms an opportunity to respond to changed requirements, we will sustain a protest based on an agency's failure to issue a written amendment only where the failure prejudiced the protester. First St. Invs. Ltd. Partnership, B-270894.2, B-270894.3, Aug. 15, 1996, 96-2 CPD para. 69 at 7-8. There was no prejudice here.  (Aqua-Flo, Inc., B-283944, December 30, 1999)

Although contracting agency may have improperly performed a price/technical tradeoff between proposals in violation of the solicitation's evaluation scheme, the protester was not prejudiced by the improper tradeoff decision where the record shows that agency reasonably concluded that protester's proposal was technically unacceptable.  (SBC Federal Systems, B-283693; B-283693.2, December 27, 1999)

Here, we need not determine whether the exchanges with MTI constituted discussions--and thus whether the agency should have established a competitive range and conducted discussions with other offerors in it--because it is clear from the record that CMCI was not prejudiced by the agency's failure to hold discussions with it. In this regard, competitive prejudice is an essential element of every viable protest, Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 5, and we will not sustain a protest for failure to hold discussions where it is apparent from the record that the protester could not have improved its proposal enough through discussions to be in contention for award. Schleicher Community Corrections Center, Inc., B-270499.3 et al., Apr. 18, 1996, 96-1 CPD para. 192 at 6, recon. denied, B-270499.6, Aug. 15, 1996, 96-2 CPD para. 68; Strategic Analysis, Inc., supra, at 5; Northrop Worldwide Aircraft Servs., Inc., B-262181, Oct. 27, 1995, 95-2 CPD para. 196 at 8-9, recon. denied, B-262181.3, June 4, 1996, 96-1 CPD para. 263. Such is the case here.  (Charleston Marine Containers, Inc., B-283393, November 8, 1999)

The determination that the scoring of prices here was not rational does not end our inquiry. Our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Because our decision here turns on prejudice, we set forth below a lengthy analysis of how prices should have been scored to accurately reflect the relative cost of these proposals to the government, as called for in the RFP. Based on our review, we conclude that MDI was not prejudiced by the agency's improper scoring of the price proposals.  (Medical Development International, B-281484.2, March 29, 1999)

Prejudice to [protester] MJLM

Before turning to the substance of MJLM’s challenges to the agency’s cost realism analysis, the Court addresses whether—even assuming their merit—MJLM would be entitled to relief. Thus, it is well-established that “[a] protester must show not simply a significant error in the procurement process, but also that the error was prejudicial, if it is to prevail in a bid protest.” Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996) (citing Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996)). In that regard, “[a] party has been prejudiced when it can show that but for the error, it would have had a substantial chance of securing the contract.” Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009) (citing Bannum, Inc., 404 F.3d at 1358); Galen Med. Assocs., 369 F.3d at 1331; Info. Tech., 316 F.3d at 1319.

Here—even assuming that MJLM was correct that the CO’s cost analysis was flawed—it cannot meet its burden of showing prejudice. Thus, according to MJLM, if the CO had accepted the cost evaluator’s analysis in its entirety, the result would have been to require an upward adjustment in API’s price of some $1.6 million and in MJLM’s by $262,000. See Pl.’s Mot. at 44–45. In that case, MJLM’s proposed costs over a five-year period would have been $629,000 less than API’s (rather than $756,495 greater as the CO determined). Id.11 But the value of the contract over the five-year period was close to $50 million, and price was the least important consideration in choosing the awardee under the RFP. AR Tab 6 at 178. The RFP, in fact, provides that the adjectival ratings for the technical evaluation criteria, when combined, are to be considered “significantly more important” than cost. Id.

Further, the CO’s award determination memorandum makes it clear that a small price advantage in MJLM’s favor would not have changed the result because the agency had determined that API’s proposal was “significantly stronger than MJLM’s.” Id. Tab 60 at 6710.

As CO Matz explained:

[T]he differences in Cost between the two offerors did not serve as a significant discriminator in my decision. Both offerors proposed costs that were determined to be fair, reasonable, and realistic. Even though API’s proposed cost was 1.5% lower than the overall cost proposed by MJLM and 1% below the IGCE, I did not view that as a significant factor in the evaluation here since this is a cost reimbursement contract, so I viewed the two proposed costs as roughly equivalent, with API having just a slight edge for this factor.

Id. at 6716. Indeed, CO Matz stated that even “if API’s costs had been adjusted to be higher than MJLM’s probable cost, that would not have altered my best value determination.” Id. at 6715.

In short, even assuming that the agency erred by not adjusting API’s costs upward by as much as $1.6 million, as MJLM urges it should have done, MJLM has not demonstrated that it suffered prejudice. For that reason alone, MJLM’s arguments based on the agency’s cost realism analysis are unavailing.  (McConnell Jones Lanier & Murphy, LLP v. U. S., No. 15-1351C, September 23, 2016)

GAO disagreed with the agency’s conclusion that the contracting officer did not abuse her discretion. It found that “[a]lthough an offeror has the burden of submitting an adequately written proposal, and an agency may downgrade a proposal for the lack of requested information, an agency may not ignore prior performance information of which it is aware.” AR 24-1456; 2013 WL 1944164, at *4 (citing Consolidated Eng’g Servs., Inc., B-279565.2, .3, 99-1 CPD ¶ 75, 1998 WL 1045204, at *4 (Comp. Gen. June 26, 1998)). Because the Corps’s contracting officer was aware of Bauer’s experience from other proposals, including especially that by Edens, she could not reasonably find Bauer’s experience acceptable for Edens but unacceptable for BCPeabody. Id. (“Here, the proposals of both Edens and BCPeabody included [Bauer] as their respective cut-off wall construction subcontractor, and it was not reasonable for the Corps to find [Bauer’s] experience acceptable for Edens but unacceptable for BCPeabody.”).

GAO nonetheless denied BCPeabody’s protest, finding that it was not prejudiced by the contracting officer’s error. AR 24-1457; 2013 WL 1944164, at *4. BCPeabody had included with its briefing to GAO a project information sheet completed by Bauer Foundations Canada, a separate legal entity from Bauer. That affiliated entity was not covered by Bauer’s letter of commitment to BCPeabody, and therefore the protest was denied. AR 24-1457; 2013 WL 1944164, at *5.

(pages deleted)

II. Prejudice

To succeed on the merits, a bid protestor must show not only that there was an error in the procurement process but also that it was prejudiced by the error. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996). In this respect, a protestor must demonstrate that there was a “substantial chance it would have received [the] contract award, but for the alleged error in the procurement process.” McAfee, Inc. v. United States, 111 Fed. Cl. 696, 712 (2013) (quoting Gentex Corp. v. United States, 58 Fed. Cl. 634, 653 (2003) (in turn citing Information Tech. & Applications, 316 F.3d at 1319)); see also Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999). This inquiry into “prejudice” is distinct from the inquiry into standing. While both use the “substantial chance” doctrine, prejudice at the jurisdictional threshold can be satisfied on the basis of the plaintiff’s allegations, whereas prejudice on the merits can only be satisfied by the effect of an agency decision adjudged to be unlawful. See Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 696 (2010).

BCPeabody has demonstrated that it was prejudiced by the contracting officer’s abuse of discretion. If the contracting officer had acted reasonably in light of the facts and circumstances at hand, BCPeabody would have had a “substantial chance” of receiving the contract. BCPeabody would have been a technically acceptable bidder offering the lowest price by more than $1,000,000.

(sections deleted)

CONCLUSION

For the reasons stated, BCPeabody’s motion for judgment on the administrative record is GRANTED, as is BCPeabody’s Motion for Permanent Injunction, ECF No. 47. The government’s and Edens’s motions for judgment on the administrative record are accordingly DENIED.

The Corps’s award of the contract to Edens is set aside, and the Corps is required to restore BCPeabody to the competition and to reevaluate the proposals that were submitted.  The clerk is directed to issue a final judgment in accord with this disposition.  Costs are awarded to plaintiff.  (BCPeabody Construction Services, Inc. v. U. S. and Edens Construction Co., Inc., No. 13-378C, September 25, 2013)  (pdf)

II. Digitalis Was Not Prejudiced by Any Errors in the Procurement.

Even assuming arguendo that Digitalis had standing to challenge the merits of the procurement, it would still be required to show that any procurement errors caused prejudice. Bannum, 404 F.3d at 1351. Here, Digitalis cannot show that any such errors were prejudicial. Accordingly, we cannot sustain its protest.

As a general matter, an agency procuring products or services is obliged to “obtain full and open competition through the use of competitive procedures in accord with the requirements of this chapter and the Federal Acquisition Regulation.” 10 U.S.C. § 2304(a)(1)(A). There are, however, exceptions to this requirement, such as when the goods or services are available from only one source and no other item will satisfy the agency’s needs. Id. § 2304(c)(1). Such procurements may be set aside if they lack a rational basis or involved a violation of a statute, regulation, or procedure. See Weeks, 575 F.3d at 1358; Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed. Cir. 2004). Here, Digitalis challenges both the rational basis of this procurement and its compliance with various limitations placed on such non-competitive acquisitions.

Our review of the administrative record lends credence to a number of Digitalis’ allegations of hasty and shoddy contracting. As previously noted, however, even if a protestor proves there were procurement errors, the protest will be sustained only if the errors “significantly prejudiced” the protestor. Bannum, 404 F.3d at 1353. This is a factual determination. Id. A protestor must show there was a “substantial chance” it would have received the contract but for the agency’s errors. Id. (citing Info. Tech., 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)).

Plaintiff disputes the applicability of the prejudice requirement, arguing that a protestor is required to show prejudice only when alleging a violation of statute or regulation and not when challenging the rational basis of the procurement. Pl.’s Reply at 8 (citing Impresa Constuzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Digitalis’ reliance on Impresa, however, is misplaced. For one, Impresa does not explicitly support Digitalis’ interpretation but merely mentions prejudice only in the context of an alleged violation of statute. Without a more explicit statement, we will not take this as an implicit change in our standard of review. Second, Digitalis’ argument is rebutted by subsequent cases, such as Bannum, that affirm the requirement of prejudice regardless of whether the error involved the rational basis or a violation of statute or regulation. See Bannum, 404 F.3d at 1351; Dyonyx, L.P. v. United States, 83 Fed. Cl. 460, 466 (citing Bannum, 404 F.3d at 1351) (“[I]f the government action lacked a rational basis, a factual inquiry must be conducted to determine whether the protester was prejudiced by the conduct.”). Finally, the Administrative Procedures Act, upon which our entire bid protest standard of review is founded, mandates that “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706.

Here, Digitalis makes multiple allegations of error, some of which appear to be well-founded. As already discussed, however, none of these errors, if rectified, would have put Digitalis in a position to receive the contract. Stated differently, we cannot say that but for these errors, Digitalis had a substantial chance at the contract. For example, Digitalis argues that the synopsis misidentified the object sought. The fact remains, however, that when Digitalis did eventually see the synopsis, it was immediately spurred to action. There was no confusion as to the thrust of the procurement. Digitalis also argues that the comment period was not reasonable, as required by FAR Part 5.203(b). We are sympathetic to the argument that five days—two of which were weekend days—and an eleventh-hour modification strain the bounds of reasonableness. The fact remains, however, that Digitalis did not notice the synopsis until more than three weeks later. Even if the comment period had been 20 days, it would not have changed the outcome of the procurement. The same is true for Digitalis’ allegations that the agency commenced negotiations prematurely in violation of FAR Part 6.303-1(a) and that the agency violated 10 U.S.C. § 2304(f)(4)(A) by making a sole-source acquisition on the basis of a failure to plan ahead or the expiration of funds. In neither case were these errors prejudicial and thus are no basis on which to sustain Digitalis’ protest.  (Digitalis Education Solutions, Inc. fv. U. S. and Morris & Lee d/b/a Science First, No. 10-855, February 11, 2011)  (pdf)

2. Two Types of Prejudice Analysis

Because it is central to a plaintiff’s demonstration that it is an interested party under § 1491(b)(1), this threshold showing of “prejudice (or injury) is a necessary element of standing.” Myers, 275 F.3d at 1370. As such, prejudice is a threshold jurisdictional issue that the Federal Circuit has stressed must be reached before addressing the merits in a bid protest. ITAC, 316 F.3d at 1319; Myers, 275 F.3d at 1369–70; see Media Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003) (“Because standing is jurisdictional, lack of standing precludes a ruling on the merits.”). The lawfulness of the contested agency decisions is thus wholly immaterial to this initial showing of prejudice. See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (“The threshold inquiry into standing in no way depends on the merits of [a plaintiff’s] contention that particular conduct is illegal.”); Night Vision Corp. v. United States, 68 Fed. Cl. 368, 392 (2005) (noting that this initial examination of prejudice “does not include weighing facts and making substantive determinations on the merits”). Rather, this showing turns entirely on the impact that the alleged procurement errors had on a plaintiff’s prospects for award, taking the allegations as true. See USFalcon, Inc. v. United States, 92 Fed. Cl. 436, 450 (2010) (explaining that “for purposes of standing” the court “must accept the well-pled allegations of agency error to be true”). Given this focus on a plaintiff’s allegations of agency error, the court terms this standing prejudice, “allegational prejudice.”

In order to prevail in a bid protest, however, a plaintiff must satisfy a second type of prejudice requirement, one that has caused a good deal of confusion because it is often mistaken for its standing doctrinal fraternal twin. See USFalcon, 92 Fed. Cl. at 450 (explaining why two examinations of prejudice are needed); Serco, Inc. v. United States, 81 Fed. Cl. 463, 482 n.25 (2008) (noting that “prejudice analysis” comes in “two varieties”); see also L-3 Global Commc’ns Solutions, Inc. v. United States, 82 Fed. Cl. 604, 608 n.4 (2008); DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528, 536 (2007); Systems Plus, Inc. v. United States, 69 Fed. Cl. 757, 769 (2006); Textron, Inc. v. United States, 74 Fed. Cl. 277, 285 (2006). The need for this second showing of prejudice is captured in section 10(e) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, which is incorporated in 28 U.S.C. § 1491(b)  as the standard of review to establish entitlement to relief in bid protest cases. See Textron, 74 Fed. Cl. at 284–85; Metro. Van and Storage, Inc., 92 Fed. Cl. at 248. The court thus terms this second showing of prejudice, “APA prejudice.”

In particular, the APA instructs that “due account shall be taken of the rule of prejudicial error” when determining whether to set aside any unlawful agency decision. 5 U.S.C. § 706; see supra note 30. Concordantly, the Federal Circuit has held that the court must conduct a second prejudice inquiry—one to which the court’s determination on the merits is a prerequisite—in order to “assess[] whether an adjudged violation of law warrants setting aside a contract award.” Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). To satisfy this second prejudice inquiry, a plaintiff “must show that there was a ‘substantial chance’ it would have received the contract award but for the errors” that the court determines the agency made. Id. at 1353.

To summarize, Federal Circuit precedent has used the doctrine of prejudice in two distinct ways, the first relating to the pre-decisional standing inquiry of “allegational prejudice,” the second corresponding to “APA prejudice.” Compare ITAC, 316 F.3d 1319 (explaining that “the prejudice issue must be reached before addressing the merits” (emphasis added)) with Bannum, 404 F.3d at 1351 (explaining that a “bid protest proceeds in two steps,” whereby the court first decides the merits, then determines if the plaintiff was prejudiced by any adjudged violations of law). It is interesting to note that both categories of prejudice apply the “substantial chance” test. Compare ITAC, 316 F.3d at 1319 with Bannum, 404 F.3d at 1353; see USfalcon, 92 Fed. Cl. at 450.

But that is not the end of our “prejudice” inquiry. Partly to clarify the distinction between the two prejudice inquiries, bid protest jurisprudence writ large can be seen as evolving into a three-step analysis. First, in order to demonstrate allegational prejudice, a plaintiff must show that it would have had a substantial chance of being awarded the contract but for the combined impact of all agency decisions alleged to be unlawful. See ITAC, 316 F.3d at 1319; USFalcon, 92 Fed. Cl. at 450; Serco, 81 Fed. Cl. at 482 n.25; Textron, 74 Fed. Cl. at 285. Second, and only if the plaintiff makes this threshold showing of prejudice, the court determines whether the challenged agency decisions were contrary to law. See id. And third, in order to demonstrate APA prejudice, the plaintiff must show that it would have had a substantial chance of being awarded the contract but for the combined impact of any agency decisions adjudged to be unlawful. See Bannum, 404 F.3d at 1353; USFalcon, 92 Fed. Cl. at 450; Serco, 81 Fed. Cl. at 501; Textron, 74 Fed. Cl. at 285.

To be sure, the second prejudice inquiry (the third step in the above analysis) is not always required. If all alleged procurement errors ultimately withstand the court’s scrutiny—i.e., if the court upholds as lawful every agency decision challenged by a plaintiff—the need for a second prejudice inquiry will be obviated. See Bannum, 404 F.3d at 1357; Info. Tech. and Applications Corp., 51 Fed. Cl. at 357. By the same token, if none of the challenged agency decisions survives judicial review—i.e., if all decisions alleged to be unlawful are adjudged to be so—a second prejudice inquiry would simply duplicate the first and would thus be redundant. USFalcon, 92 Fed. Cl. at 450. However, where a plaintiff succeeds on the merits of some but not all of its allegations, a second examination of prejudice becomes necessary. This is because the plaintiff’s success in demonstrating allegational prejudice in such cases does not guarantee its success in demonstrating APA prejudice. See id. Specifically, the plaintiff in such cases may be able to satisfy the substantial chance test based upon the combined impact of all allegedly unlawful agency decisions, but may fail to do so based upon the cumulatively lesser impact of those decisions that the court ultimately determines to be unlawful. Id.

C. Does Plaintiff Have Standing To Sue?

With the above framework in place, the court turns to defendant and intervenor’s central argument in support of their RCFC 12(b)(1) motions to dismiss. To reiterate briefly, the movants argue that plaintiff’s challenges to the Army’s price evaluation, under Counts 1 and 2, are untimely challenges to the terms of the Solicitation. E.g., Def.’s Mot. to Dismiss at 10–11; Intervenor’s Mot. to Dismiss at 18–20 (same). Accordingly, the movants argue that plaintiff has waived its right to bring either challenge and that this waiver erects a jurisdictional bar that mandates dismissal of Counts 1 and 2. E.g., Def.’s Mot. to Dismiss at 10–11 (citing Blue & Gold, 492 F.3d at 1313); Intervenor’s Mot. to Dismiss at 25–27 (same). With plaintiff’s challenges to the Army’s price evaluation dismissed, the movants conclude that plaintiff cannot demonstrate prejudice because it would not have a substantial chance of award even if successful in its remaining challenges. E.g., Def.’s Mot. to Dismiss at 13; Intervenor’s Mot. to Dismiss at 27.

1. The Waiver Rule Is Not a Jurisdictional Bar

Contrary to the movants’ contention, however, the waiver rule of Blue & Gold does not erect a jurisdictional bar to plaintiff’s claims. See Def.’s Mot. for J. at 11 n.1; Intervenor’s Mot. to Dismiss at 25–27. Rather, the Federal Circuit’s express ground for recognizing a waiver rule is the Tucker Act’s non-jurisdictional mandate for “expeditious resolution” of bid protest actions. Blue & Gold, 492 F.3d at 1313 (citing 28 U.S.C. § 1491(b)(3)).

In Blue & Gold, the Federal Circuit began its discussion with the patent ambiguity doctrine, under which an offeror’s failure to seek clarification of a patent ambiguity in a government solicitation precludes acceptance of the offeror’s interpretation in any subsequent court action. Id. (citing Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000)). Blue & Gold explained that recognition of a waiver rule—with respect to challenges to patent ambiguities or patent errors in a government solicitation—vindicates the equitable principle that “[v]endors cannot sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive award [sic] and then, if unsuccessful, claim the solicitation was infirm.” Id. at 1314 (quoting Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 175 n.14 (2005)).

Blue & Gold further analogized the waiver rule to the doctrines of laches and equitable estoppel. Id. at 1314–15 (citing, inter alia, Wit Assocs., Inc. v. United States, 62 Fed. Cl. 657, 662 n.5 (2004)). Of course, these equitable doctrines do not impose jurisdictional requirements, but rather create affirmative defenses that a defendant must invoke. See, e.g., PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 530 (2010) (citing Poett v. Merit Sys. Prot. Bd., 360 F.3d 1377, 1384 (Fed. Cir. 2004)).

The Federal Circuit concluded its analysis in Blue & Gold by recognizing that “the jurisdictional grant of 28 U.S.C. § 1491(b)(1) contains no time limit requiring a solicitation to be challenged before the close of bidding.” Blue & Gold, 492 F.3d at 1315. In other words, Blue & Gold repudiated the possibility of tethering the waiver rule to the Tucker Act’s jurisdictional requirements. Rather, the Federal Circuit explained that it is the statutory mandate of § 1491(b)(3) for “expeditious resolution”—a non-jurisdictional requirement—along with “the rationale underlying the patent ambiguity doctrine”—a rationale founded upon equitable considerations—that “favor recognition of a waiver rule.”

Concordantly, the Court of Federal Claims has consistently applied the waiver rule of Blue & Gold as part of the court’s determination on the merits in a bid protest. E.g., Moore’s Cafeteria Servs. v. United States, 77 Fed. Cl. 180, 185 (2007); Masai Techs. Corp. v. United States, 79 Fed. Cl. 433, 444 (2007); Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 737 (2007). In some instances, the court has dismissed an untimely challenge to the terms of a solicitation on the ground that the challenge failed to state a claim upon which relief may be granted. E.g., Unisys Corp. v. United States, 89 Fed. Cl. 126, 136–37 (2009); Int’l Mgmt. Srvcs., Inc. v. United States, 80 Fed. Cl. 1, 9 (2007). Of course, dismissal for failure to state a claim is itself a decision on the merits. See, e.g., Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981).

Finally, defendant’s attempt to analogize the waiver rule to the Tucker Act’s statute of limitations is misguided. See Hr’g Tr. at 13. Id.  The Tucker Act’s statute of limitations, 28 U.S.C. § 2501, is jurisdictional because it is a condition on the United States’ waiver of sovereign immunity. John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354 (Fed. Cir. 2006), aff’d, 552 U.S. 130 (2008); Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (en banc). In that regard, § 2501 is exceptional among statutes of limitations. Like other timeliness rules, most statutes of limitations are treated as affirmative defenses that are themselves subject to waiver if not raised in a timely manner. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008). To be sure, failure to bring a claim within any limitations period invariably bars relief, as a practical matter. As a matter of jurisprudence, however, this does not deprive the court of jurisdiction over the untimely claim.

In short, the waiver rule of Blue & Gold creates an equitable, rather than jurisdictional, bar to a disappointed offeror’s untimely challenge to the terms of a government solicitation. Thus, although the court agrees that plaintiff’s challenges to the Army’s price evaluation, under Counts 1 and 2, are untimely, see infra p. 40, this does not deprive the court of jurisdiction over those claims. Equally important, because it is a determination on the merits, applicability of the Blue & Gold waiver rule has no place in the court’s inquiry into allegational prejudice, the inquiry pertinent to the threshold question of plaintiff’s standing. See ITAC, 316 F.3d at 1319; Myers, 275 F.3d at 1369; Media Techs. Licensing, 334 F.3d at 1370. By grounding their motions to dismiss upon operation of the waiver rule, defendant and intervenor seek to inject a merits determination into an inquiry that abides none. See id.

2. Plaintiff Can Demonstrate Allegational Prejudice

Furthermore, beyond the issue of the applicability of the waiver rule of Blue & Gold to jurisdiction, the court concludes that plaintiff has readily demonstrated allegational prejudice and thus standing to sue. This is because plaintiff would have had a substantial chance of receiving the AAA contract but for the combined impact of the alleged errors in the Army’s procurement. See USFalcon, 92 Fed. Cl. at 450 (explaining that a plaintiff can “cumulatively establish prejudice” through the impact of “multiple errors”); Serco, 81 Fed. Cl. at 501 (holding “that the combined impact of the errors encountered here clearly prejudiced each of the protesters”). As explained below, but for the challenged aspects of the Army’s evaluation of price and past performance, plaintiff would have rated favorably under both of these evaluation factors and would have been well positioned to prevail in a trade-off analysis.

Under Counts 1 and 2, plaintiff posits various grounds for its allegation that the Army’s price evaluation was unlawful. Am. Compl. ¶¶ 65–81; Pl.’s Mot. for J. at 33–42. Plaintiff alleges that the law required the Army to calculate Total Evaluated Price (the basis for award) as the Total Amount for all CLINs rather than as the sum of unit prices. E.g., Pl.’s Mot. for J. at 34–35. Taking that allegation as true as this court must, see supra p. 19, had the Army hypothetically calculated Total Evaluated Price as plaintiff proposes, plaintiff’s ranking in price would have leapt from a distant seventh to a fairly close second, immediately below intervenor (the awardee). See AR 600. And defendant misses the mark when it argues that plaintiff’s “high price is not the result of the evaluation method used by the Army, but rather a business decision on the part of [plaintiff] to include an extraordinarily high unit price” for CLIN 0011. Def.’s Mot. to Dismiss at 9. Plaintiff’s proposed unit prices for CLIN 0011—which totaled $[number redacted] for all four contract periods—represented a vastly disproportionate [number redacted]% of plaintiff’s sum of unit prices. See AR 321, 600. By contrast, CLIN 0011 contributed a relatively negligible [number redacted]% of plaintiff’s Total Amount for all CLINs, which was approximately $[number redacted] million. Id. Therefore, it appears to the court that plaintiff’s poor ranking in price thus resulted, not from any business decision on plaintiff’s part, but from the Army’s decision to use the sum of unit prices as the basis for award.

In addition, under Count 4, plaintiff alleges that the SSA’s past performance evaluation unlawfully excluded from consideration a wide range of relevant past performance information. See, e.g., Am. Compl. ¶¶ 115–19; Pl.’s Mot. for J. at 24–29. Had the SSA expanded the scope of the past performance evaluation as plaintiff alleges the law required—so as to encompass purportedly negative past performance information for other offerors and positive information for plaintiff—plaintiff’s ranking in past performance would have changed dramatically. See, e.g., Pl.’s Mot. for J. at 24–29. Intervenor’s past performance rating, in particular, would have been further reduced had the SSA included the negatively rated GLS PPQ in her evaluation, as plaintiff alleges the law required. See, e.g., Pl.’s Mot. for J. at 24; Intervenor’s Resp. to Pl.’s Mot. for J. (“Intervenor’s Resp.”) at 21–22. Indeed, had the SSA conducted the more expansive evaluation that plaintiff urges, plaintiff might well have ranked first in past performance with a rating of “Very Low Risk,” while all other offerors would have been assigned a rating of “Moderate Risk” or worse. See Pl.’s Mot. for J. at 27, 31.

If plaintiff were thus ranked second in price and first in past performance, the SSA would have been required to include plaintiff in the trade-off analysis. See AR 54. As noted above, the RFP required the SSA to “conduct a trade off based on a comparative assessment of the [p]ast [p]erformance and [p]rice factors,” with the proviso that the “[p]ast [p]erformance factor is significantly more important than price.” Id. Thus, even a modest improvement in plaintiff’s ranking in past performance, along with a second-place ranking in price, would have afforded plaintiff a substantial chance of prevailing in a trade-off analysis and thus being selected for award. Accordingly, plaintiff has demonstrated allegational prejudice and has standing to sue.

Before turning to the merits, however, the court must address the movants’ second argument. As noted above, defendant argues that plaintiff lacks standing because, as the seventh-ranked offeror in price and past performance, “it never had a ‘substantial chance’ of receiving award” and “was outside the zone of consideration.” Def.’s Mot. to Dismiss at 8, 9 (emphases added). In a slight variation on this logic, intervenor attempts to limit plaintiff to demonstrating allegational prejudice based upon the incremental impact of one alleged error at a time. See Intervenor’s Mot. to Dismiss at 17. In a sense, this argument conflates allegational prejudice with APA prejudice. By insisting that plaintiff’s poor ranking precludes it from being an interested party, the movants essentially would have plaintiff prove the merits of its allegations—i.e., prove that the contested procurement decisions are unlawful—before it may rely upon the impact of those decisions in demonstrating prejudice.

More importantly, the movants misapprehend the nature of the inquiry into allegational prejudice, an inquiry aimed at assessing the plaintiff’s likely prospects for the contract award, see ITAC, 316 F.3d at 1319, but for the combined impact of all alleged errors in the procurement, see USFalcon, 92 Fed. Cl. at 450. That is, plaintiff need not demonstrate that it had a substantial chance of award despite the alleged errors, but rather that it would have had a substantial chance of award but for the alleged errors. See ITAC, 316 F.3d at 1319; see also Heritage of Am., LLC v. United States, 77 Fed. Cl. 66, 77–78 (2007); Night Vision Corp., 68 Fed. Cl. at 392.

Indeed, to accept either defendant’s or intervenor’s logic would be to permit the Army, indeed any procuring agency, to insulate from judicial review much of its decision-making in a competitive acquisition. See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 37 (2010) (rejecting a similar argument due to its “illogical result of potentially insulating from review an agency’s decision to declare one proposal acceptable and another unacceptable”). Under intervenor’s view of the allegational prejudice inquiry, a procuring agency could evade judicial oversight by making a series of unfavorable determinations, each with a negligible impact on the rating of an offeror’s proposal, but with the cumulative effect of excluding that offeror from the competitive range. And under defendant’s view, a procuring agency could accomplish the same goal by rating a losing offeror so unfavorably on a single evaluation factor as to fling it irretrievably far from the zone of consideration. The court has previously rejected, as a “transparent and misleading attempt[] to change binding law,” defendant’s similar contention that an agency’s decision to exclude an offeror from the competitive range precludes the offeror from establishing standing. Dyonyx, L.P. v. United States, 83 Fed. Cl. 460, 469 (2008). Quite simply, the law cannot abide the result that either defendant or intervenor seeks.

As explained above, plaintiff can readily make the required showing of allegational prejudice because it would have had a substantial chance of being awarded the AAA contract but for the alleged errors in the Army’s procurement. See ITAC, 316 F.3d at 1319. Plaintiff is thus an “interested party” under § 1491(b)(1) and has standing to bring the instant protest. See id.; AFGE, 258 F.3d at 1302.  (Linc Government Services, LLC, v. U. S. and McNeil Technologies, Inc., No. 10-375C, November 5, 2010)  (pdf)

1. Allied Cannot Show Prejudice From DOJ’s Technical Evaluation.

The Court agrees with Allied’s assertion that there were errors in DOJ’s technical evaluation process. As previously discussed, TEP members used score sheets to evaluate offerors’ technical proposals on a point system with adjectival ratings. For example, factor one, Technical Merit, provided for ratings of 52-60 (excellent), 43-51 (good), 34-42 (satisfactory), 25-33 (poor), and 0-24 (unacceptable), while sub-factor one, Understanding of the Requirements, provided for ratings of 22-25 (excellent), 18-21 (good), 14-17 (satisfactory), 10-13 (poor), and 0-9 (unacceptable). See, e.g., AR 834-35. The score sheets identified how the point system relates to the adjectival ratings, but the score sheets failed to indicate how scores should be tabulated. Indeed, the score sheets do not instruct TEP members how to assign points, how the number or extent of the significant strengths should correspond to total points, or what constituted a “perfect” score. Id. More importantly, DOJ left the adjectival ratings for the Technical Merit sub-factors undefined. Id. Lacking a defined scoring system, the TEP’s ratings varied significantly by individual. For example, four of the six evaluators found Allied’s technical quotation to be superior, while two evaluators found Monster’s quotation to be superior by a large margin. See AR 834-999.

In addition to the disparate scoring, the Court found a number of inconsistencies in the written portion of the TEP’s technical evaluation. For example, TEP members assigned significant weaknesses to Allied for failing to discuss certain factors, which Allied actually included in its offer. See, e.g., AR 854, 610, 734. Some evaluators also marked both “significant strength” and “significant weakness” for the same proposal feature in the same sub-factor. One evaluator identified Avue’s Concierge Service as a “significant strength,” AR 850, but then assigned Allied a “significant weakness” for the same feature, AR 851. Also, it appears that evaluators credited Monster with “significant strengths” for ARS system features for which Allied was not similarly credited. In sub-factor three, one evaluator gave Monster a “significant strength” for “undergoing a series of upgrades throughout the course of a year,” AR 841-42, without giving Allied the same credit, despite having the same feature in its quotation.

The Court also found questionable the CO’s communications with TEP members following receipt of their initial evaluations. AR 827-32, 896-900, 949-50, 985. The CO asked four TEP members to provide more detail explaining why they assigned Monster a low score. See, e.g., AR 985. In response to the CO’s inquiries, two TEP members altered their scores to give Monster higher, or even perfect scores, for three different sub-factors. See AR 838, 841, 931. Allied also received less than perfect scores in certain factors, but the administrative record lacks any evidence that the CO questioned TEP members about their evaluations of Allied. See, e.g., 909-11, 943-44.

Despite the errors in DOJ’s technical evaluation, Allied fails to meet its burden of demonstrating that DOJ’s actions prejudiced it. To prevail in a bid protest, a plaintiff must do more than merely demonstrate an error on the part of the Government. See Labatt Food Serv., Inc., 577 F.3d at 1380; Galen Med. Assoc., Inc., 369 F.3d at 1330 (“‘[T]o prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it.’” (quoting Data Gen. Corp., 78 F.3d at 1562)). Rather, Allied also must show that “there was a substantial chance it would have received the contract award but for [the CO’s] error.” Alfa Laval Separation, Inc., 175 F.3d at 1367 (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). Thus, a procurement official’s decision must be sufficiently serious to cause prejudice to a protestor in the procurement. See E.W. Bliss Co., 77 F.3d at 448-49.

In this case, given the substantial difference between Allied’s and Monster’s price quotations, Allied cannot reasonably show that it would have received the award in the absence of DOJ’s errors. For evaluation purposes, the CO used CLIN 003 for 10,0001 to 15,000 ARS users to compare Monster’s and Allied’s pricing, using the prepayment discount Allied proposed in its quotation. AR 1038. At that CLIN level, Monster’s price for the full five-year term of the contract, including transition costs as a non-incumbent contractor, was $3,204,351. Id. Allied’s price at the same CLIN level, without transition costs, was $7,000,486. Id. Allied’s price was 218 percent higher than Monster’s evaluated price. Applying the premium Allied imposes for monthly invoicing as required by the RFQ, Allied’s price balloons to $11,698,107 for CLIN 003 under the contract’s five-year term, while Monster’s price remains the same. AR 1026. This amount is more than $8 million or 365 percent higher than Monster’s price. AR 1026-28. In the Acquisition Summary and in the Notification and Basis of Award, the CO noted that if DOJ used the BPA at its maximum CLIN 0023 level of 115,000 employees, Monster’s total price would be $13 million. AR 1045, 1047. In contrast, Allied’s total price would be approximately $78 million if DOJ prepaid Allied’s price annually. AR 592. Allied’s total price would increase to more than $112 million if DOJ invoiced monthly at the maximum CLIN level. AR 1026. Thus, under CLIN 0023, the difference between Monster’s and Allied’s prices is slightly less than $100 million. Such a drastic price difference precludes a finding of any prejudice to Allied. See Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. 34, 54 n.19 (1997) (finding no prejudice where the protestor’s price was 35 percent higher than the awardee’s despite a violation of procurement laws); Data Gen. Corp., 78. F.3d at 1563-64 (holding that the technical advantages of the protestor’s proposal did not offset the difference in price).

The Court acknowledges that Allied’s margin of technical superiority may have increased if the TEP had performed its duties properly. (Pl.’s Mot. 73.) Indeed, Allied’s technical proposal may have been superior by as many as fourteen points in a properly performed evaluation. Id. at 21. However, any changes to the technical scoring in Allied’s favor would not diminish the rationality of awarding the BPA to a qualified vendor whose price was significantly lower. This Court in Electronic Data Systems, LLC v. United States recently addressed the impact of a significant price difference under circumstances similar to this case. No. 09-857C (Fed. Cl. filed Apr. 26, 2010). In that case, the Court held that despite the Government’s error in failing to amend a solicitation, “a significant difference in price . . . can and often does preclude such a finding.” Id. at 24 (citing Data Gen. Corp., 78 F.3d at 1563; Axiom Res. Mgmt., Inc. v. United States, 78 Fed. Cl. 576, 590 (2007)). The Court reasoned that even if the disappointed bidder could have revised its proposal in light of the Government’s errors, any such differences would have been inconsequential given the dramatic price difference “representing nearly a 29 percent spread.” Id. at 23-24. The price difference in this case was much greater. Indeed, Allied’s evaluated price was at least 218 percent higher than Monster’s. Assigning a higher technical rating to Allied’s proposal would not have overcome the staggering price difference. As Judge Allegra colorfully explained in Electronic Data Systems, the dramatic price difference “is the proverbial elephant in the parlor – and, strive as it might, plaintiff cannot squeeze that pachyderm out of the door.” Id. at 23.

The CO reasonably considered the offerors’ price difference in the Acquisition Summary, noting that “the price evaluation overwhelmingly favor[ed] Monster” and that “[t]here is no reasonable way to assert that Allied/Avue, receiving a technical score 5.04% higher than Monster justifies paying more than twice as much, resulting in millions of additional dollars over the five year term of the BPA.” AR 1039. The record simply does not suggest that any DOJ errors reasonably could offset the price difference so as to make DOJ’s selection improper. See Data Gen. Corp., 78 F.3d at 1563; see also Axiom Res. Mgmt. Inc., 78 Fed. Cl. at 590 (concluding that despite the apparent errors in the plaintiff’s technical approach and past performance ratings, the awardee’s lower price still trumped plaintiff’s price); Candle Corp. v. United States, 40 Fed. Cl. 658, 665 (1998) (holding that even if the Government had complied with its legal obligations, the plaintiff’s price still would have been considerably more expensive than the awardee’s). The Court thus cannot find any prejudice to Allied from DOJ’s technical evaluation.  (Allied Technology Group, Inc. v. U. S. and Monster Government Solutions, LLC, No. 10-120C, July 2, 2010)  (pdf)

The “substantial chance” test has been applied in the context of ordinary postaward bid protests. Weeks Marine, Inc. v. United States (Weeks Marine), 79 Fed. Cl. 22, 35 (2007). With respect to pre-award protests, however, there exists persuasive authority that a protestor may be required to show only “that an unreasonable agency decision ‘created a non-trivial competitive injury which can be redressed by judicial relief.’” Id. (quoting WinStar Comm. Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)). The different standards for pre-award and post-award relief are explained as resulting from the fact that the “substantial chance” test “envisions a review of the contract award or bid evaluation process to determine what might have occurred if the government had not erred.” Id. (quoting WinStar, 41 Fed. Cl. at 763 n.9). By contrast, in a pre-award solicitation-based protest, “the evaluation of offers has not even begun.” Id. (quoting WinStar, 41 Fed. Cl. at 763 n.9).

In this case, both parties have submitted complete proposals and plaintiff’s only claimed injury is the possibility that it might, if afforded more time, have submitted lower prices. AR passim; Pl.’s Mem. passim. Here, where plaintiff is making a post-award, solicitation-based protest based on a defect in the solicitation of which the plaintiff was unaware until after the closing date for offers, see infra Part II.C.1-2, neither the “substantial chance” standard of Bannum, 404 F.3d at 1353, applicable to post-award protests where the protest challenges the contract award or bid evaluation occurring after the closing date for offers, nor the “non-trivial competitive injury” standard of Weeks Marine, 79 Fed. Cl. at 35, appears suitable. The situation in this case differs from that in Weeks Marine, or in WinStar, cited in Weeks Marine, both involving cases in which no evaluation of offers had begun. Weeks Marine, 79 Fed. Cl. at 23; WinStar, 41 Fed. Cl. at 750. Also, in this case, there is no allegation, as there was in Weeks Marine, that the violation of law would result in a competitive injury that could be “business threatening.” Weeks Marine, 79 Fed. Cl. at 35. The court chooses to articulate a standard for the showing of prejudice that lies between Weeks Marine, 79 Fed. Cl. at 35 (the identification of “a non-trivial competitive injury capable of being redressed by judicial relief”) and Bannum, 404 F.3d at 1353 (the “substantial chance” test), and takes into account the factual development of the case afforded by the completion (albeit flawed) of the offering process and the actual evaluation of completed proposals. In these circumstances, the court will find prejudice if plaintiff demonstrates that, absent the error, it would have had a chance of receiving the contract award that is more than merely speculative. Factual findings on prejudice are to be made from the record evidence. Bannum, 404 F.3d at 1356.  (emphasis added)

(Sections deleted)

Plaintiff argues that “Allied had no ability to reduce or modify its prices based on the manner in which Amendment 5 was communicated to Allied or the information in the amendment itself.” Compl. ¶ 11. According to plaintiff’s argument in briefing, it was in fact prejudiced by the error in the issuance of Amendment 5:

[I]f Allied had known about Amendment 5 extending the bid closing date to January 11, 2008 it would have had the opportunity to look at our current back log and run various costing strategies based on the government’s revised purchase estimates for the base year and the option years. Also, it would have provided Allied with the opportunity to resolve the PIHM Hose issue regarding our proposed source. Having this issue resolved would allow Allied to be confident that it would get timely receipts of the PIHM Hose for the option years. Also if Allied had adequate time to factor in both of these issues it would have provided the Plaintiff an opportunity to not only lower our base year price but also determine if option year pricing needed to be escalated.

Additionally, Steve Pack, the President of Allied, was absent from the office, due to the Christmas holiday, during the period when the revised offer to Amendment 4 was prepared. . . . Mr. Pack typically is the final pricing authority on all major bids and proposals. . . . Mr. Pack also frequently cuts pricing on bid estimates based on his subjective determination of what it will take to be successful in winning the contract. Finally, there are many purchased components that are required to produce the Pigtail assembly. It is Allied’s practice to follow up with vendors for better pricing up to the date bids are submitted. Allied also diligently looks for alternative vendors for products where we believe cost savings can be realized. On December 20, 2007 DSCR’s e-mail directed Allied to respond to Amendment by December 28, 200[7]. Considering most vendors were unavailable on Monday December 24, 2007 and obviously Tuesday December 25, 2007 that effectively left Allied with only two days, December 21, 2007 and December 26, 2007, to work on its pricing and seek better price quotes. Pl.’s Mem. 10-11 (citations omitted).

(Sections deleted)

Plaintiff argues that because Steve Pack, Allied’s president, was absent due to the Christmas holiday, he was unable to use his discretion to cut prices “based on hisPl.’s Mem. 11. The court agrees with defendant that the government should not be held responsible for Steve Pack’s having taken a vacation when he believed the deadline for proposals was December 28, 2007. Def.’s Resp. 3 n.1. Furthermore, plaintiff argues that due to the Christmas holiday, after Amendment 4 was issued Allied was left “with only two days, December 21, 2007 and December 26, 2007, to work on its pricing and seek better price quotes.” Pl.’s Mem. 11. However, even if Allied had been unable to work on pricing on December 22-25, it still had six working days “(December 18, 19, 20, 21, 26 and 27) to revise its pricing.” Def.’s Resp.

Also, and importantly, the price factor was considered along with the non-price factor of past performance in order to determine which proposal provided the best value to the Government. AR 48. The proposals were evaluated by weighing price and nonprice factors equally. Id. As defendant-intervenor correctly states, "Allied fails to demonstrate how an opportunity to reduce its proposed price – or even an actual reduction in its proposed price – would result in Allied having an evaluated price that was sufficiently lower than ILC’s price to overcome ILC’s superiority with respect to ABVS scoring." Def.-Int.’s Mem. 13. Allied has failed to demonstrate that, absent the error, it would have had a chance of receiving the contract award that is more than merely speculative. For the foregoing reasons, the court finds that plaintiff was not prejudiced by defendant’s error.  (Allied Materials & Equipment Co., Inc., v. U. S. ILC Dover, LP, No. 08-151C, May 13, 2008) (pdf)

In sum, the agreed upon facts of this case demonstrate that plaintiff was eliminated from the competitive range with regard to the unrestricted portion of this solicitation because the prices set forth in its proposal were not competitive. In that regard, plaintiff had no right to receive further solicitation amendments. Additionally, Ironclad’s assertion that it would have changed that pricing information, had it been privy to Amendment 12, is speculative and unpersuasive, at best. Ironclad is simply “[a] disappointed offeror that has made a business judgment to propose an expensive product,” and under the law of this circuit, plaintiff “cannot utilize the protest system to obtain the proverbial second bite at the apple.” Candle Corporation, 40 Fed. Cl. at 665-66 (quoting Alfa Laval Separation, Inc. v. United States, 40 Fed. Cl. 215, 235 (1998), rev’d on other grounds, 175 F.3d 1365 (Fed. Cir. 1999)); see also Data General, 78 F.3d at 1564. Finally, the government has shown that because no offerors were permitted to alter their prices after the issuance of Amendment 12, the amendment would have had no impact upon Ironclad’s price. For the foregoing reasons, the court concludes that the Corps was not required to provide Ironclad with Amendment 12 and, even if the Corps erred when it did not provide Amendment 12 to Ironclad, plaintiff has not carried its burden to establish that it was prejudiced by that error. Any claimed error was therefore harmless. See Galen Medical Associates, 369 F.3d at 1330. Plaintiff’s contentions regarding Amendment 12 do not vest Ironclad with standing to challenge the unrestricted awards. Defendants’ motions to dismiss plaintiff’s challenge to those awards, and any claim of error related to Amendment 12, are granted. (Ironclad/EEI, A Joint Venture, v. U. S. and Campbell Roofing & Construction, Inc., MGC/Campbell Roofing & Construction, Inc., Crown Roofing Services, Inc., and R. L. Campbell Roofing Company, Inc., No. 07-280C, Filed September 26, 2007) (pdf)

The FASA protest prohibitions of 41 U.S.C. § 253j(d) and FAR 16.505(a)(9) both provide that the traditional protest routes of the “issuance or proposed issuance” of a task order or delivery order are not permitted, save for exceptions in the statute as developed by case law, which are not applicable to this case. See A & D Fire Protection, Inc. v. United States, 72 Fed. Cl. at 133-34. Alternatively, therefore, to the extent that ATI’s actions are in the nature of a protest to future task orders under the terms of its contract, this court is not the proper forum. For the foregoing reasons, the court concludes that ATI, which is currently in possession of an ID/IQ computer maintenance contract awarded by Customs, was not prejudiced by the award of a second computer maintenance contract to DTI and, therefore, has no standing to bring a protest against the second award. The clerk’s office shall DISMISS the plaintiff’s complaint, and enter JUDGMENT in favor of defendant and intervenor. Plaintiff’s motion for injunctive relief, and the remaining briefing schedule set out in the court’s Order of October 11, 2006, are mooted by this decision.  (Automation Technologies, Inc., v. U. S. and Digital Technologies, Inc., Defendant-Intervenor (No. 06-694C, October 27, 2006) (pdf)

The court finds that there was no prejudice to Systems Plus’s position in this best-value procurement. The solicitation did not, and was not required to, rate the relative importance of the different evaluation criteria. Accordingly, the Contracting Officer had broad discretion to determine how important each of the criteria would be in the evaluation. In his best-value determination, the Contracting Officer indicated that there was no particular “weight” assigned to the evaluation factors: “As . . . competing offeror proposals in the Technical areas become more equal in rating, the more important Price will become.” AR Tab 16 (Determination of Best Value) at 1. The Contracting Officer stated that “[f]rom a business point of view, the value of [NetStar’s] quote response (non-cost factors) supercedes [sic] any variances for interpreting the ranking of offerors for price.” Id. at 5 (emphasis added). It thus appears that the Contracting Officer determined that NetStar’s proposal was sufficiently superior to other offerors’ proposals that NetStar should be selected regardless of which measure of price was evaluated. The Contracting Officer was not required to choose the lowest-price proposal, and therefore his decision that NetStar offered the best value regardless of the manner in which price was measured will not be deemed arbitrary, capricious, or otherwise not in accordance with law pursuant to 5 U.S.C. § 706(2)(A). See Impresa Construzioni, 238 F.3d at 1332. The court thus finds that Systems Plus’s position in the procurement was not prejudiced by the Contracting Officer’s error in evaluating the pricing in the bidders’ proposals. Simply put, Systems Plus would not have been awarded the BPA even if the Contracting Officer had used the pricing analysis advocated by the plaintiff. (Systems Plus, Inc., v. U. S., and NetStar-1, Inc., No. 05-1219C, Reissued: February 28, 2006) (pdf)

In order to sustain a challenge to an award, the challenger must show a prejudicial violation of an applicable regulation. Impresa, 238 F.3d at 1333. “To establish prejudice, plaintiff must show that there was a ‘substantial chance’ it would have received the award but for the alleged error in the procurement process.” Info. Tech. & Applications Corp. v. United States (ITAC), 316 F.3d 1312, 1319 (Fed. Cir. 2003); see also Data General Corp. v. United States, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[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.”). Neither Precision nor Hawk complied with the source approval requirement. Because Precision failed to meet the source approval requirement, Precision cannot show that it would have had a “substantial chance” of receiving the award if defendant had required source approval. In fact, if the government had required compliance with the source approval requirement, Precision not only would have lacked a “substantial chance” of receiving the award; it would have been barred from receiving the award on account of that very requirement. Accordingly, because Precision itself does not qualify as an approved source, it cannot establish that it would have had a substantial chance of receiving the award if the government had required compliance with the source approval requirement, nor can it establish that it was prejudiced by Hawk’s receipt of the award without Hawk’s first obtaining source approval. Precision has not shown, and the court 9 is not persuaded, that AMCOM’s failure to comply with the source approval requirement in this solicitation was in any way “prejudicial” to Precision. See Impresa, 238 F.3d at 1333. Accordingly, Precision’s challenge to the award on this ground must fail. (Precision Standard, Inc., v. U. S., and Hawk Enterprises, LLC., No. 05-1125C, Filed: February 27, 2006) (pdf)

Because plaintiff cannot show that it was significantly prejudiced, it cannot prevail on the merits of its claim. In addition to prevailing on the merits, in order to obtain permanent injunctive relief, plaintiff must show: (1) that it will be immediately and irreparably injured; (2) that the public interest would be better served by the relief sought; and (3) that the balance of the hardships tips in favor of the plaintiff. Bannum I, 60 Fed. Cl. at 730; see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). While this court again acknowledges that plaintiff has shown the presence of an immediate and irreparable injury, Bannum I, 60 Fed. Cl. at 730-31, plaintiff cannot obtain injunctive relief based upon the satisfaction of this single factor. “Intervenor has proved beyond cavil that a bid protest pressed well into contract performance tips the scale in favor of the awardee.” Id. at 731; see also Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 846 n.9 (D.C. Cir. 1982). Finally, the public interest is served by having the BOP observe applicable procurement regulations in conducting its reviews, but not, based on the spread in the scores, when plaintiff cannot demonstrate that a potential change in scoring would make a difference. See Bannum I, 60 Fed. Cl. at 731; see also United States v. John C. Grimberg Co., 702 F.2d 1362, 1371 (Fed. Cir. 1983). Accordingly, based on the foregoing, plaintiff has failed to prove that the violation of the applicable procurement regulation prejudiced it. The Clerk of the Court shall enter judgment for defendant. (Bannum, Inc. v. U. S. and Dismas Charities, Inc., No. 03-1751C, January 18, 2006) (pdf)

Labatt urges, and the trial court found, that because the three offerors improperly submitted the first round proposal revisions via e-mail, all proposals had been effectively withdrawn at that time and therefore eliminated from competition. Relying on Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (“Garufi”), the trial court found that Labatt had standing because all proposals were invalidated long before Labatt’s late response to amendment 0007, so the government was obligated to rebid the contract and allow Labatt to compete for it. Because the court concluded that Labatt would have a substantial chance of receiving the award in a rebid, it found that Labatt had standing to sue.

The court’s reliance on Garufi is misplaced. The aggrieved bidder in that case, Garufi, claimed that the government made an arbitrary and capricious responsibility determination regarding the winning bidder’s record of integrity and business ethics. 238 F.3d at 1334. Garufi had standing to bring its bid protest because if its claims were true, the government’s arbitrary responsibility determination resulted in a contract award to a bidder who was unfairly advantaged by the government’s error. Id. In such a scenario, Garufi was denied the opportunity to fairly compete for the contract. Because “the government would [have been] obligated to rebid the contract” if the protest was successful, and the “appellant could compete for the contract once again,” we found Garufi met the “substantial chance” standard and had standing. Id. Garufi thus stands for the proposition that an unsuccessful bidder who alleges harmful error in a government bid contest in which he has an economic interest has the requisite standing to sue.

The critical difference between Garufi and the present case is not the existence of error on the part of the government, but the allegation of an error that, taken as true, would be prejudicial to the complaining party’s attempt to procure the contract. It is true that a bid protester must have a substantial chance of receiving an award in order to have an economic interest in it and therefore standing to file a bid protest. Info. Tech., 316 F.3d at 1319 (“In order to establish standing, [the protester] must show that it is an actual or prospective bidder . . . whose direct economic interest would be affected by the award of the contract or by failure to award the contract . . . .”) (internal quotation marks omitted); Myers, 275 F.3d at 1370 (confirming that standing to bring bid protests under the Tucker Act, 28 U.S.C. § 1491(b), is limited to actual or prospective offerors whose direct economic interest would be affected by the contract award); Rex Serv. Corp., 448 F.3d at 1307 (defining an “interested party” as an actual or prospective bidder or offeror whose direct economic interest would be affected by the contract award). But in Garufi, the protesting party also alleged a critical element of standing that is absent here: harmful error by the government in the procurement process. The trial court’s application of Garufi to the case at hand relies on a logically infirm analogy between (1) an allegedly erroneous responsibility determination in Garufi that advantaged one offeror to the detriment of all others, and (2) an improper deviation from the solicitation in this case that equally permitted all offerors to submit proposal revisions via e-mail, harming none.

In both cases unsuccessful offerors alleged error on the part of the government. Here, however, there is no showing of how the government’s error caused Labatt to suffer disparate treatment or particularized harm. Instead, Labatt tautologically argues that it was harmed by the method of transmission error because it would have a substantial chance of receiving the contract award in a rebid. By conflating the standing requirements of prejudicial error and economic interest, Labatt would create a rule that, to an unsuccessful but economically interested offeror in a bid protest, any error is harmful. Under this radical formulation there would be no such thing as an error non-prejudicial to an economically interested offeror in a bid contest. We decline to adopt such a rule. Instead, we reiterate the established law in this circuit that non-prejudicial errors in a bid process do not automatically invalidate a procurement. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir. 1994) (holding, inter alia, that de minimis errors by the procuring agency are not sufficient grounds for overturning a contract award); Andersen Consulting Co. v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992) (same).

II.

In the same vein, Labatt equates the two irregularities that occurred in this bid process, (1) its late proposal submission, and (2) all three offerors’ submission of proposal revisions by e-mail. Labatt rushes past standing to the merits of its case, contending that because Federal Acquisition Regulation 15.208(a) makes offerors responsible for submitting proposals on time and by an authorized transmission method, the issues of timeliness and transmission method are necessarily and always of equal importance. Indeed, Labatt’s primary argument is that it was arbitrary and capricious for the government to enforce proposal submission deadlines but not the solicitation’s instructions for method of transmission. Essentially, its position is that if the government makes any mistake in a procurement process related to method of transmission, no matter how slight or unharmful, then it must nullify the contest and begin anew.

Labatt’s position is unavailing. As we said above, “to prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it.” Data Gen. Corp., 78 F.3d at 1562; JWK Int’l Corp., 279 F.3d at 988. To establish prejudice a protester must show that there was a substantial chance it would have received the contract but for the government’s error in the bid process. Bannum, 404 F.3d at 1358; Galen Med. Assocs., 369 F.3d at 1331; Info. Tech., 316 F.3d at 1319; Statistica, 102 F.3d at 1581. Labatt has not shown that the government’s improper acceptance of e-mails throughout the bid process interfered with its ability to receive the contract award. To the contrary, the government’s mistaken acceptance of bid revisions via e-mail neither helped nor hindered any offeror. Labatt’s proposal would not have been improved and its chances of securing the contract would not have been increased if DSC cured the e-mail submission error. Thus, it can not show that there was a substantial chance it would have received the contract award but for the unauthorized acceptance of e-mailed revisions and has therefore failed to show that it was prejudiced by DSC’s erroneous acceptance of them. There is no connection between the government’s method of transmission error and Labatt’s failure to secure the contract. Without a showing of harm specific to the asserted error, there is no injury to redress, and no standing to sue.

Lateness, on the other hand, is a different issue. Labatt was disqualified from further consideration in the solicitation process because its response to amendment 0007 was late, not because it was sent by e-mail rather than overnight mail. Labatt was the only offeror to submit a late response, and its untimely submission constituted a separate and independently sufficient ground for rejection.

All errors are not equal. There are inherent competitive advantages to submitting a proposal after all other parties are required to do so, such as access to post-deadline news and market information that could result in last minute changes to the proposal. See, e.g., Data Gen. Corp., 78 F.3d at 1561 (“The rule [that an offeror may not modify its proposal after best and final offers are submitted] is designed to prevent a bidder from gaining an unfair advantage over its competitors by making its bid more favorable to the government in a context where the other bidders have no opportunity to do so.”). To avoid this potential for abuse, submission deadlines are strictly enforced across the board. When the rules and procedures of a bid process are applied equally to all parties, but one party submits a proposal past the deadline for doing so, the untimely submission becomes a stranger to the process, and is disqualified from the procurement. A late proposal is tantamount to no proposal at all. Such a party has no “substantial chance” of award, and no more standing to sue than the proverbial man on the street.

The method of transmission error complained of by Labatt was not relevant to Labatt’s removal from the competition, or the ultimate award of the contract to USF. It was removed from the competition for an untimely submission. Because the asserted error caused no harm, there is no injury to redress and Labatt is entitled to no relief. As such, Labatt failed to establish standing to challenge DSC’s award to USF, and the Court of Federal Claims had no jurisdiction to vacate the award.  (Labatt Food Service, Inc., v. U. S., No. 2009-5017, August 24, 2009)  (pdf)

The trial court did not clearly err in finding that Bannum was not significantly prejudiced by the BOP’s violations. To establish prejudice Bannum was required to show that there was a “substantial chance” it would have received the contract award but for the BOP’s errors in the bid process. Info. Tech., 316 F.3d at 1319; Alfa Laval, 175 F.3d at 1367; Statistica, 102 F.3d at 1582. This test is more lenient than showing actual causation, that is, showing that but for the errors Bannum would have won the contract. Alfa Laval, 175 F.3d at 1367; Data Gen., 78 F.3d at 1562. Bannum necessarily relies on the difference between the 104 points the BOP docked it based on the CEFs, and the 74.5 points by which Alston Wilkes won the bid. Had the BOP deducted fewer than 29.5 points for past performance, Bannum would have prevailed. But neither Bannum nor the record explains why Bannum had a substantial chance of scoring at least 74.5 points higher on past performance had the BOP reviewed the CEFs in accordance with the FAR. The independent review pursuant to the separate GAO proceeding increased Bannum’s past performance award by 16 to 312 points, an amount insufficient to alter the award outcome. There is nothing besides Bannum’s conjecture to support the contention that another review, comporting with the FAR, would provide it a substantial chance of prevailing in the bid. Bannum’s argument rests on mere numerical possibility, not evidence. In sum, we find no clear error in the trial court’s determination and will not disturb it. Accordingly, the judgment of the Court of Federal Claims is affirmed.  (Bannum, Inc. v. U. S., No. 04-5008, April 21, 2005) (pdf)