Free Published Opinion/Order - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
No. 07-744 Filed: March 18, 2008 (Corrected) TO BE PUBLISHED* *************************************** * INFORMATION SCIENCES CORP., * Administrative Procedure Act; * 5 U.S.C. §§ 701, et seq.; Plaintiff, * "Best Value" Determination; * "Competitive Range" Determination; GALLAGHER, HUDSON, HUDSON & * Federal Acquisition Regulation 15.101, HUNSBERGER, INC. (d/b/a Development * 15.208, 15.305(a), 15.306, 15.308, InfoStructure or DEVIS), * 15.404-1; 48 C.F.R. §§ 15.101, 15.208, * 15.305(a), 15.306, 15.308, 15.404-1; Plaintiff-Intervenor, * Intervenor as a Matter of Right, * RCFC 24(a); v. * Jurisdiction; * Motion for Judgment on the Administrative THE UNITED STATES, * Record, RCFC 52.1; * Permanent Injunction; Defendant, * Post-Award Bid Protest, * 28 U.S.C. § 1491(b)(1); SYMPLICITY CORPORATION, * Price Realism Analysis; * Res Judicata; Defendant-Intervenor. * RESTATEMENT (SECOND ) OF CONTRACTS §§ * 202(1), 203(c). * *************************************** William A. Shook, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Washington, D.C., for Plaintiff. Gregg M. Schwind, United States Department of Justice, Washington, D.C., for Defendant. Robert S. Ryland, Kirkland & Ellis LLP, Washington, D.C., for Plaintiff-Intervenor. Richard L. Moorhouse, Greenberg Traurig LLP, Washington, D.C., for Defendant-Intervenor. MEMORANDUM OPINION AND ORDER

On March 7, 2008, a pre-publication draft of this Memorandum Opinion and Order was provided under seal to the parties. The parties were instructed to propose any redactions on or before close of business on March 13, 2008. On March 18, 2008, this Memorandum Opinion and Order was published with redactions, indicated by the designation "[deleted]." A non-redacted version also was filed under seal on that date with the Clerk of the United States Court of Federal Claims.

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BRADEN, Judge. On September 19, 2006, the court issued a Memorandum Opinion and Order setting aside an award of a Federal Business Opportunities Contract ("FBO Contract") to Symplicity Corporation ("Symplicity"), after determining that the General Services Administration ("GSA") violated Federal Acquisition Regulation ("FAR") 15.306(c) and 15.308. See Info. Scis. v. United States, 73 Fed. Cl. 70, 129 (2006) ("Info. Scis. I"). Specifically, the court held that GSA violated FAR 15.306(c), because the relevant Contracting Officer ("CO") did not consider price when establishing the competitive range, as required in the Solicitation. Id. at 114-16 (citing AR 254-55 (RFP § L.10)) ("[O]fferors are cautioned to submit proposals on the most favorable basis as to price, delivery, or time of completion and other factors[.]"); AR 258 (RFP § M.2) ("Price proposals . . . will be evaluated[.]"); AR 263-64 (RFP § M.6) ("[T]he Government will perform a price analysis."); see also AR 2387, 2538. In addition, the court held that GSA violated FAR 15.308, because the Source Selection Authority ("SSA") failed to exercise independent judgment and document that judgment in the Source Selection Decision. See Info. Scis. I, 73 Fed. Cl. at 118-20; see also id. at 120 ("In this case, the Administrative Record does not evidence that the SSA exercised independent judgment raising Symplicity's rating from `Unacceptable' to `Acceptable' and ISC's rating from `Marginal' to `Acceptable.'"). The court also held that the Plaintiff ("ISC") and Plaintiff-Intervenor ("DEVIS") were prejudiced, because each had a "substantial chance" of being awarded the FBO Contract, but for those violations. Id. at 116-18, 121-22. Accordingly, the court ordered GSA to appoint a new SSA to review the prior proposals, pursuant to FAR and the terms of the Solicitation, and to select the offeror for award that represents the "best value." Id. at 129.1 On October 24, 2007, ISC filed a Complaint to protest the September 28, 2007 re-award of the FBO Contract to Symplicity, alleging that GSA again violated FAR and/or acted without a rational basis in making the award. On October 26, 2007, DEVIS intervened to challenge that

On October 3, 2006, the Government filed a motion requesting reconsideration of three aspects of the court's September 19, 2006 decision. On reconsideration, the court rejected the Government's argument that the court erred in determining that the SSA failed to document the exercise of independent judgment. See Info. Scis. v. United States, 75 Fed. Cl. 406, 410 (2007) ("Info. Scis. II") ("At no place in the GSA's Final Decision, did the SSA provide any independent analysis or rationale for endorsing the Minority Report's conclusions or how it considered and balanced/weighed the Majority Report."). Second, the court determined that the Government failed to establish "manifest error" in the court's conclusion that ISC and DEVIS were prejudiced by the CO's failure to consider price in establishing the competitive range. Id. at 411-12 ("The court's conclusion was based on two factors. [I]t was difficult to determine from Symplicity's initial price proposal the specific price Symplicity was proposing. [T]he CO's `best guess' of Symplicity's proposed price was well below the average price of . . . the seven others bidders, [and] significantly lower than the Government's own cost-estimate[.]"). Third, the court rejected the Government's contention that, absent bad faith, the appointment of a new SSA was unnecessary. Id. at 413. The court explained that appointing a new SSA was less intrusive than ordering GSA to resolicit bids, but should ensure that ISC and DEVIS received a fair, unbiased evaluation of their proposals. Id. 2

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award. On December 11, 2007, Symplicity also intervened and on January 3, 2008 filed a posthearing motion to support GSA's September 28, 2007 re-award of the FBO Contract. For the reasons discussed herein, the court has determined that ISC's Motion For Judgment On The Administrative Record and DEVIS's Motion For Judgment On The Administrative Record are granted, in part, by enjoining the September 28, 2007 re-award of FBO Contract No. GSOOT05NSC0005 to Symplicity. To facilitate review of this Memorandum Opinion and Order, the court has provided the following outline: I. BACKGROUND. A. On April 18, 2007, The Contracting Officer Issued A Reconsidered Competitive Range Determination. On September 13, 2007, A New Source Selection Authority Issued A Revised Source Selection Decision.

B.

II. III.

PROCEDURAL HISTORY. DISCUSSION. A. B. Jurisdiction. Standing. 1. Plaintiff Has Standing. a. b. 2. C. D. As An "Interested Party." With A "Substantial Chance" Of Being Awarded The Contract.

Both Intervenors Have Standing.

The Effect of Res Judicata On Claims Asserted In This Bid Protest. The Relevant Standards For Decision On The Administrative Record In A Bid Protest Case. Motions For Judgment On The Administrative Record. 1. The Contracting Officer's April 18, 2007 Reconsideration Of Competitive Range Determination.

E.

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a.

Did Not Violate FAR 15.306, In Not Conducting Additional Offeror Discussions. i. ii. iii. Plaintiff's Argument. The Government And Defendant-Intervenor's Responses. The Court's Resolution.

b.

Did Not Violate FAR 15.306, In Not Relying On The Price Evaluation Team's Analysis. i. ii. iii. Plaintiff-Intervenor's Argument. The Government's Response. The Court's Resolution.

c.

Did Not Violate FAR 15.306, In Correcting DefendantIntervenor's Price Proposal. i. ii. iii. Plaintiff-Intervenor's Argument. The Government And Defendant-Intervenor's Responses. The Court's Resolution.

d.

Did Not Violate FAR 15.306, In Not Conducting A "Price Realism Analysis." i. ii. iii. Plaintiff's Argument. Defendant-Intervenor's Response. The Court's Resolution.

2.

The New Source Selection Authority's September 13, 2007 Source Selection Decision. a. "Best Value" Analysis Did Not Comply With FAR 15.101 And FAR 15.308. i. Plaintiff And Plaintiff-Intervenor's Arguments.

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ii. iii. b.

The Government And Defendant-Intervenor's Response. The Court's Resolution.

Complied With FAR 15.308, In Documenting The Exercise Of Independent Judgment. i. ii. iii. Plaintiff And Plaintiff-Intervenor's Arguments. The Government And Defendant-Intervenor's Responses. The Court's Resolution.

F.

Plaintiff And Plaintiff-Intervenor Are Entitled To Injunctive Relief. 1. 2. 3. Governing Precedent Regarding Relief In Bid Protest Cases. The Requested Relief In This Case The Court's Resolution. a. Plaintiff And Plaintiff-Intervenor Have Demonstrated Success On The Merits As To The "Best Value" Determination. Plaintiff And Plaintiff-Intervenor Have Established Irreparable Harm, If Injunctive Relief Is Not Granted. In This Case, The Balance Of The Hardships Weighs In Favor Of Injunctive Relief. In This Case, The Public Interest Weighs In Favor Of Injunctive Relief.

b.

c.

d.

IV.

CONCLUSION.

COURT APPENDIX: COMPARISON OF THE PRIOR MAY 26, 2005 AND JUNE 16, 2005 SOURCE SELECTION DECISION WITH THE SEPTEMBER 13, 2007 NEW SOURCE SELECTION DECISION * * *

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I.

BACKGROUND.2 A. On April 18, 2007, The Contracting Officer Issued A Reconsidered Competitive Range Determination.

On April 18, 2007, the CO reconsidered the prior Competitive Range Determination for Solicitation No. TQN-04-RA-00. See AR 2540 (April 18, 2007 Competitive Range Determination). The CO relied on the proposals submitted to GSA on June 24, 2004, and existing technical evaluations, and did not consider any additional information. See AR 2543-46, 2586. The CO's technical evaluation was conducted in three steps. See AR 2541-42. First, the proposals were evaluated under a "Requirements Audit Check," to ascertain whether they included all of the critical requirements specified in the RFP. See AR 2542 ("Ten critical parts were required in each offeror's proposal, and as a result of the Audit two proposals were eliminated from further competition."). Second, the remaining proposals were evaluated according to the technical factors listed in the RFP. Id. Third, the CO established a new competitive range, based on the ratings from the aforementioned evaluation. Id. ("[F]our offerors, Aquilent, DEVIS, ISC, and Symplicity, received a technical proposal adjectival rating of Acceptable/Confidence[.]"). Although price was an evaluation factor, the CO emphasized that the other technical evaluation factors were of greater importance. See AR 2543 ("The RFP . . . explains the relative importance of the evaluation factors, and specifically explains that all technical evaluation factors, when combined, are significantly more important than price and incentive plan."). After the technical evaluation was completed, the remaining offerors' price proposals were evaluated for "realism, reasonableness[,] and an indication of compatibility between the proposed prices and the proposed scope and effort." Id. ("[T]he proposed prices from the four offerors . . . were considered in determining eligibility for inclusion in the competitive range."). The CO's analysis of the initial price proposals, however, "revealed that not all bidders provided proposals in the format that was requested." See AR 2544 ("All of these initial price proposals required varying degrees of clarification. [A]ll of the proposals lacked the detail required to complete a thorough price analysis."). The facts relating to the background of the Solicitation and prior bid protest are discussed fully in Info. Scis. v. United States, 73 Fed. Cl. 70 (2006) ("Info. Scis. I"). Additional facts recited herein were derived from: the Administrative Record ("AR" 2540-88); Plaintiff's November 12, 2007 Motion for Judgment On The Administrative Record ("Pl. Mot. II") and Plaintiff's Memorandum in Support ("Pl. Mem. II"); Plaintiff-Intervenor's November 26, 2007 Corrected Memorandum In Support of Motion For Judgment On The Administrative Record ("Int. Mem. II"); the Government's November 27, 2007 Cross Motion And Response To Judgment On The Administrative Record And Consolidated Opposition To Plaintiff's And Plaintiff-Intervenor's Motions For Judgment On The Administrative Record ("Gov't Resp. II"); Defendant-Intervenor's January 3, 2008 Post-Hearing Brief ("Def. Int. PH Br."); the Government's January 3, 2008 PostHearing Brief ("Gov't PH Br."); Plaintiff's February 4, 2008 Post-Hearing Brief ("Pl. PH Br."); and Plaintiff-Intervenor's February 4, 2008 Post-Hearing Brief ("Pl. Int. PH Br."). 6
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The CO stated that he made a "clerical error" in determining that Symplicity's initial price proposal was $1,074,220. See AR 2545. The correct price should have been $12,044,563.3 Issues requiring clarification regarding Symplicitiy's price proposal "were minor in nature and could easily be resolved in discussion." 4 See AR 2545. The CO also found that DEVIS's initial price proposal required clarification,5 but concluded that DEVIS's price, "as it related to its proposed solution, had an excellent chance of being determined realistic, fair, and reasonable, once these minor issues were clarified in discussions." AR 2546. After reviewing ISC's price proposal, the CO also concluded that additional clarification was needed,6 and that ISC's proposal also "had an excellent chance of being determined realistic, fair and reasonable, once these minor issues were clarified in discussions." Id. The CO determined that ISC's total price was [deleted]. See AR 2560 ("ISC's evaluated price should be reduced by [deleted], from [deleted] to [deleted] [,] because of the benefits of early implementation."). On April 25, 2007, the CO sent letters to Aquilent, DEVIS, ISC, and Symplicity informing them that each was considered to be in the Competitive Range and that a new SSA had been appointed.7 See AR 2549-55, 2559. The CO also requested that each of the offerors extend its proposal. Id. ("As a result of the court's direction, it is necessary to request an extension of your current proposal."). Offerors were instructed to reply and indicate the number of days that their proposals would be extended, but not to include any additional information. Id. ISC, Aquilent, and Symplicity extended their proposals for 180 days. See AR 2549-50, 2554. DEVIS's proposal was

Subsequently, the CO also admitted that a second clerical error and "rounding up" resulted in a price that was about $600 less than the total price DEVIS's counsel calculated in adding all CLINs listed in Symplicity's price proposal: $12,045,191.81. See AR Tab 165 ¶ 7 (Jan. 3, 2008 Abood Decl.); see also Int. Ex. A (Symplicity Price Calculation Table). No discussions took place prior to the new SSA making the Source Selection Decision. See AR 2540-88. The CO, however, expressed the following concerns about DEVIS's price proposal: "[DEVIS's] issues included: providing evidence that all optional software had been priced; providing an explanation for the price increase in year 7; providing additional information on teaming arrangements, and identifying pricing associated with hardware refresh." AR 2546. Clarifications regarding ISC's price proposal included: "further explanation regarding its $0.00 charge for developing FedTeds; clarifying its use of the phrase `task orders and costs;' providing additional supporting price documentation; providing additional information on teaming arrangements; and identifying pricing associated with hardware refresh." AR 2546. The new SSA was Mr. Michael Sade, GSA's Assistant Commissioner, Office of Acquisition Management, Federal Acquisition Service. See Def. Int. PH Br. at 19 (citing AR 2562). 7
7 6 5 4

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extended for 244 days. See AR 2552. GSA had no further contact with the offerors until the SSA issued the revised Source Selection Decision. See AR 2587. B. On September 13, 2007, A New Source Selection Authority Issued A Revised Source Selection Decision.

On September 13, 2007, the new SSA issued a revised Source Selection Decision. See AR 2559-62 (Sept. 13, 2007 Source Selection Decision). Therein, the new SSA represented that he personally reviewed the "Acquisition Plan, Source Selection Evaluation Plan, Solicitation, Proposals, Majority, Minority, and Independent [Technical] Evaluation Reports, Competitive Range Determination, Price Evaluation, the Reconsideration of the Competitive Range Determination, and the Court of Federal Claims decision." AR 2559. The SSA also determined that the final ratings and adjusted prices for each proposal were reasonable. See AR 2559-61. To his credit, the SSA admitted that the CO provided assistance in preparing the final Source Selection Decision, but stated that the "opinions, judgments, and tradeoffs" were his own. See AR 2559. The new SSA found that Aquilent's proposal had the "lowest technical ratings and highest price," and did not represent the "best value" to the Government. See AR 2560-61 ("The Aquilent proposal was uniformly rated as technically "Marginal" in all three evaluations. Moreover, the Aquilent price was by far the highest of all four offers in the competitive range. The combination of the technical evaluation ratings and price removes the proposal from further consideration[.]"). Next, in comparing the strengths and weaknesses of DEVIS's proposal, the new SSA found that: DEVIS was the only technical proposal where there was a consensus of excellent or acceptable on all evaluation factors . . . . The Majority, Minority, and Mitretek evaluations judged the DEVIS proposal to be technically superior to the other three proposals in the competitive range . . . . However, both the Minority and Mitretek evaluations noted a number of weaknesses and disadvantages associated with the DEVIS proposal. With respect to the price of the DEVIS proposal, the contracting officer has previously determined that DEVIS' evaluated price should be reduced by [deleted] . . . because of a benefit of early implementation. AR 2560. The new SSA also found that DEVIS's proposal presented attractive options, but ultimately determined that those benefits were not worth the additional cost. See AR 2561 ("However, in my judgment there is no reasonable basis for spending an additional [deleted], much less an additional [deleted], for the technical strengths of the DEVIS proposal . . . . For these reasons, the DEVIS proposal does not represent the best value to the government."). Next, the new SSA compared ISC's and Symplicity's proposals, giving additional weight to the price analysis, because he found that both offerors received "similar technical adjectival ratings." 8

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Id. ("According to the RFP, provision M.2, the price analysis takes on more importance because ISC and Symplicity both received similar technical adjectival ratings."). The new SSA summarized his analysis of ISC's proposal as: rated `Marginal' with `Confidence' by the Majority , `Acceptable' with `Confidence' by the Minority, and `Acceptable' by the independent Mitretek evaluator . . . . I have carefully reviewed the strengths and weaknesses of the ISC proposal identified by all evaluators. Because the Minority and Mitretek reports are consistent with respect to the rating of "Acceptable" and are more focused on the governments (sic) needs as reflected in the RFP requirements, it is my judgment that the Minority and Mitretek reports more accurately assess the ISC proposal. Therefore, I determine that the ISC proposal is `Acceptable' with `Confidence.' [T]he contracting officer has previously determined that ISC's evaluated price should be reduced by [deleted] because of the benefits of early implementation . . . . I find this adjustment reasonable. Id. Then, the new SSA: carefully reviewed the strengths and weaknesses of the Symplicity proposal identified by the evaluators and the responses to identified weaknesses in the Minority report. The Minority and Mitretek reports are consistent with respect to strengths and weaknesses and their ultimate rating of `Acceptable' . . . . The strengths of the Symplicity proposal more than outweigh any remaining identified weaknesses in the proposal. It is my judgment that the Minority and Mitretek assessments [are] more accurate, and should be given more weight than the Majority evaluation. Therefore, it is my judgment that the Symplicity proposal is `Acceptable' with `Confidence.' Id. The new SSA concluded that the strengths of ISC's proposal were: experience as the incumbent subcontractor, a proposal for early implementation, strong interagency coordination, plans for maintaining existing and familiar interfaces, partnering with IMSI for certification and accreditation process, maximizing return on investment in the current FBO, understanding of issues associated with the software development life cycle, approach to delivering software, management and key personnel[.] See AR 2561-62. He found, however, that "the technical strengths of the ISC proposal [were] not worth an additional [deleted]" and did not "outweigh the strengths, innovative approach, and lower price of the Symplicity proposal, and the Government will not receive [deleted] in benefits from ISC." AR 2562.

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The new SSA also concluded that "Symplicity [had] proposed an innovative approach, many enhancements over the existing system, and a program that will lower the costs of operation," and selected the proposal as representing the "best value" for the Government. See id. ("Symplicity offers an innovative and qualitatively comparable technical solution that fulfills the Government's requirements at a significantly lower price."). On September 28, 2007, the CO notified all "Competitive Range" offerors that the new SSA re-awarded the FBO contract to Symplicity. See AR 2565-68 ("In accordance with the court's decision, the competitive range was reconsidered by the Contracting Officer, and a new Source Selection Authority was appointed. As a result, the SSA has selected Symplicity corporation as representing the best value to the government."). The CO also offered to debrief the offerors not selected. See AR 2565-66, 2568 ("If you would like a debriefing, please provide a written request[.]"). On October 12, 2007, GSA provided DEVIS with a debriefing. See Int. Mot. II Att. 1 (Oct. 12, 2007 Response to Written Questions). DEVIS questioned the new SSA's conclusion which found the Symplicity proposal was "Acceptable with [C]onfidence." Id. at 1. DEVIS was advised that the new competitive range determination was based on the "rating of each proposal against all evaluation criteria." Id. DEVIS also asked whether new information was considered, other than that provided with the initial proposals. Id. GSA responded that no new information was received. Id. All bidders received the same May 27, 2007 notice letter. Id. No additional contact was had with any bidders other than the competitive range notification. Id. The new SSA also relied on the existing technical evaluations. Id. at 2. On October 15, 2007, GSA provided ISC with a debriefing. See AR 2569-70. In addition, GSA responded to ISC's written questions. See AR 2585. GSA confirmed that ISC's June 24, 2004 proposal was reconsidered for the "Competitive Range Determination" and that ISC's final technical proposal was used to evaluate the "technical aspects of [the] proposal." AR 2586 (Oct. 15, 2007 Responses to Written Questions). In response to ISC's inquiry regarding any past performance weaknesses, GSA responded that the only weaknesses identified were those discussed in the debriefing. Id. ("There were no significant weaknesses associated with ISC's proposal, other than what is stated in the Past Performance debriefing slide."); see also AR 2582 (ISC Past Performance Debriefing Slide) (identifying no weaknesses). GSA also stated that the strengths and weaknesses identified in ISC's proposal were based on the new SSA's review of "existing evaluation documents." AR 2586. GSA declined to provide ISC with suggestions as to how ISC could have improved the risk rating to the highest level of confidence, other than to reiterate that the debriefing slides stated the significant strengths and weakness of the proposal. Id. In response to ISC's inquiry as to when past performance was evaluated, GSA stated that all "past performance information was evaluated prior to the finalization of technical evaluation reports." Id. GSA also stated that the letters asking the offerors to extend the validity of their proposals were the last communication prior to the new SSA's final decision. AR 2587.

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II.

PROCEDURAL HISTORY.

On October 24, 2007, ISC filed a Complaint, together with a Motion And Memorandum For Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction, challenging the September 28, 2007 re-award of the FBO contract to Symplicity. On October 25, 2007, the court was informed that DEVIS would file a Motion To Intervene, protesting the re-award. On October 26, 2007, the court convened a status conference, but declined to issue a temporary restraining order or preliminary injunction. On that same date, the court granted DEVIS's Motion to Intervene, and entered a Protective Order and Scheduling Order for the filing of dispositive motions and convening oral argument. On November 1, 2007, the Government filed the Administrative Record ("AR" 2540-88).8 On November 12, 2007, ISC filed a Motion For Judgment On The Administrative Record, together with a Memorandum In Support ("Pl. Mem. II"), Statement Of Facts, Attachment ("Att. 1"), and Proposed Order. On that same date, DEVIS filed a Motion For Judgment On The Administrative Record ("Int. Mot. II"), together with a Memorandum In Support, Attachment ("Att. 1") (Oct. 12, 2007 DEVIS Post-Award Debriefing Questions and Responses), and Proposed Order. On November 14, 2007, ISC filed an Amended Complaint ("Am. Compl."). On November 26, 2007, DEVIS filed a Corrected Memorandum In Support Of Motion For Judgment On The Administrative Record ("Int. Mem. II"). On November 27, 2007, the Government filed a Response To Plaintiff And Plaintiff-Intervenor's Motion For Judgment On The Administrative Record ("Gov't Resp. II"). On November 29, 2007, the court held oral arguments on all pending motions ("11/29/07 TR"). On that occasion, the Government introduced a November 29, 2007 Declaration of Mr. Robert Abood, the Contracting Officer ("Nov. 29, 2007 Abood Decl."), in addition to adding Symplicity's price proposal to the Administrative Record ("AR Tab 158"). On November 30, 2007, the court entered a Scheduling Order for the filing of post-hearing briefs and responses. On December 3, 2007, the court entered a Discovery Order, requiring the Government to submit copies of the current FBO System Contract Modification with Symplicity to ISC and DEVIS on or before December 10, 2007. On December 3, 2007, Symplicity filed a Motion To Intervene. On December 7, 2007, ISC filed a Motion For Reconsideration Of Plaintiff's Motion For Preliminary Injunction ("Pl. Mot. Recon."), together with a December 7, 2007 Declaration of Mr. Gregory Portnoy, ISC's President ("Dec. 7, 2007 Portnoy Decl."). In effect, that motion sought an injunction to protect ISC from having to supply Symplicity with ISC's proprietary information. See Pl. Mot. Recon. at 3-4; see also AR Tab 162 ¶¶ 3-5 (Dec. 7, 2007 Portnoy Decl.). On December 10, 2007, DEVIS filed a Declaration of Mr. Edward Meyers, Attorney at Kirkland & Ellis LLP ("Dec. 10, 2007 Meyers Decl."), together with Intervenor Exhibit A ("Int. Ex. A") (Symplicity Price Calculation Table).

The Administrative Record of the prior bid protest of the award of the FBO Contract to Symplicity is found at AR 1-2539. 11

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On December 11, 2007, the court convened a status conference. On that same date, the court entered an Order granting Symplicity's Motion To Intervene and an Order subjecting Symplicity to the October 26, 2007 Protective Order. The court also entered a Discovery Order requiring the Government to submit copies of any and all past, current and future FBO System Contract Modifications with Symplicity through the pendency of this case. On December 13, 2007, the court convened a status conference. On December 20, 2007, DEVIS filed a Motion To Unseal The Proposed Redacted Copy of Symplicity's Contract Modification PS02, together with 9 exhibits9 and a Proposed Order. On December 21, 2007, ISC filed a Motion For Leave To File Second Amended Complaint, together with a Second Amended Complaint ("Sec. Am. Compl."), Application for Temporary Restraining Order, Motion for Preliminary and Permanent Injunction, Exhibit Attachments, a Proposed Temporary Restraining Order, and a Proposed Order On Motion For Preliminary Injunction. On January 3, 2008, Symplicity filed a Post-Hearing Brief ("Def. Int. PH Br."), together with a January 3, 2008 Declaration of Robert Abood ("Jan. 3, 2008 Abood Decl."). On that date, the Government filed a Post-Hearing Brief ("Gov't PH Br."). On January 7, 2008, Symplicity filed a Response To Plaintiff's Motion For Leave To File Second Amended Complaint. On that date, the Government also filed a Response To Plaintiff's Motion For Leave To File Second Amended Complaint. On January 14, 2008, ISC filed a Motion For Reconsideration Of Plaintiff's Motion For Preliminary Injunction, Or, In The Alternative, Second Motion For Preliminary Injunction ("Pl. Mot. Recon. II"). This motion argued that the Government's renewed request for ISC's proprietary information created a change of circumstances causing ISC irreparable injury. See Pl. Mot. Recon. II at 2-6. On January 18, 2008, ISC and DEVIS filed a Corrected Reply To The Government's January 7, 2008 Response To Plaintiff's Motion For Leave To File Second Amended Complaint. On January 22, 2008, the Government filed a Response to Plaintiff-Intervenor's Motion To Unseal The Proposed Redacted Copy of Symplicity's Contract Modification PS02 and a Motion For Leave To File Sur-Reply. On January 24, 2008, the court granted the Government's Motion For Leave To File Sur-Reply. On January 31, 2008, the Government filed a Response to Plaintiff's Motion For Reconsideration Of Plaintiff's Motion For Preliminary Injunction, Or, In The Alternative, Second Motion For Preliminary Injunction. On that same date, DEVIS filed a Reply To The Government's Response To Plaintiff-Intervenor's Motion To Unseal The Proposed Redacted Copy of Symplicity's Contract Modification PS02. On February 4, 2008, ISC filed a Post-Hearing Brief ("Pl. PH Br."), together with two additional exhibits ("Pl. PH Br. Ex. 1, 2") (Nov. 8, 2007 "PS02" Modification of Contract) (Feb. 1, 2008 Letter from FAS Commissioner). On that date, DEVIS also filed a Post-Hearing Brief ("Pl. Int. PH Br."). On February 14, 2008, ISC filed a Reply To The Government's Response To These exhibits include: Nov. 8, 2007 Modification Of Contract Document; Dec. 11, 2007 e-mail to Mr. Gregg Schwind; Dec. 11, 2007 e-mail to Mr. Robert Ryland; Dec. 12, 2007 e-mail to Mr. Gregg Schwind; Dec. 12, 2007 e-mail to Mr. Robert Ryland; Dec. 13, 2007 e-mail to Mr. Gregg Schwind; Dec. 14, 2007 e-mail to Mr. Robert Ryland; Dec. 17, 2007 e-mail to Mr. Robert Ryland; and Dec. 17, 2007 e-mail to Mr. Gregg Schwind. 12
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Plaintiff's Motion For Reconsideration Of Plaintiff's Motion For Preliminary Injunction, Or, In The Alternative, Second Motion For Preliminary Injunction, together with 8 additional exhibits.10 On February 21, 2008, the Government filed a Response To Plaintiff And PlaintiffIntervenor's Post-Hearing Brief ("Gov't Resp. Pl. PH Br."). On that date, the court issued an Order advising the parties that the briefing period would close on February 27, 2008. On February 25, 2008, Symplicity filed a Response To Plaintiff's February 4, 2008 Reply, together with a February 23, 2008 Affidavit of Mr. Ariel M. Friedler, President of Symplicity ("Feb. 23, 2008 Friedler Aff."). On March 4, 2008, the court granted Plaintiff's December 21, 2007 Motion For Leave To File Second Amended Complaint. On that date, Plaintiff filed the Second Amended Complaint ("Sec. Am. Compl."). III. DISCUSSION. A. Jurisdiction.

The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 ("ADRA"), Pub. L. No. 104-320, § 12(a), (b), 110 Stat. 3870 (1996), authorizes the United States Court of Federal Claims to "render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1); see also Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004) ("The [United States] Court of Federal Claims has jurisdiction to review both pre-award and post-award bid protests pursuant to 28 U.S.C. § 1491(b), enacted as part of the Administrative Dispute Resolution Act of 1996[.]"). The Second Amended Complaint alleges that the Government violated numerous provisions of FAR in re-awarding the FBO contract to Symplicity. See Sec. Am. Compl. ¶ 49 ("Accordingly, ISC protests any award under Solicitation Number TQN-04-RA-0001 as contrary to regulation, unreasonable, unsupported by the facts, and an abuse of GSA's discretion."). These allegations recite a sufficient basis for the court to exercise jurisdiction, pursuant to 28 U.S.C. § 1491(b)(1). B. Standing.

As a threshold matter, a protester must establish that it is an "interested party." 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal Circuit has interpreted the term These exhibits include: Dec. 3, 2007 memo from Mr. Richard Clark; Dec. 11, 2007 Status Conference Transcript; Dec. 13, 2007 e-mail from Mr. Robert Abood; Dec. 31, 2007 e-mail from Mr. Richard Clark; Dec. 20, 2007 e-mail from Mr. Greg Portnoy; Jan. 4, 2008 e-mail from Mr. Richard Clark; undated e-mail from Mr. Greg Portnoy, quoting Jan. 8, 2008 e-mail from Richard Clark; and undated e-mail from Mr. Greg Portnoy, quoting Feb. 7, 2008 e-mail from Ms. Wendy Gosnell. 13
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"interested party" as defined in the Competition in Contracting Act, 31 U.S.C. § 3551.11 See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) ("[T]he term `interested party' in section 1491(b)(1) is construed in accordance with the Competition in Contracting Act[.]"); see also Banknote Corp., 365 F.3d at 1352 (holding that the United States Court of Federal Claims' jurisdiction under the Tucker Act, as amended, is "limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract"). The court applies a two-part test to determine whether a protester is an "interested party," i.e., the protestor must show that it was an actual or prospective bidder and the protester must have a direct economic interest in the procurement. See Rex Serv. Corp., 448 F.3d at 1307 ("[T]o come within the [United States] Court of Federal Claims' section 1491(b)(1) bid protest jurisdiction, [the protester] is required to establish that it (1) is an actual or prospective bidder, and (2) possesses the requisite direct economic interest.") (citations omitted). In addition to establishing status as an "interested party," a protestor also must show that any alleged errors resulted in "prejudice." See Galen Med. Assocs. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) ("To prevail in a protest the protestor must show not only a significant error in the procurement process, but also that the error prejudiced it.") (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (alterations in original)); see also Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) ("[P]rejudice (or injury) is a necessary element of standing."). The United States Court of Appeals for the Federal Circuit has advised that "because the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits." Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (emphasis added); see also Myers, 275 F.3d at 1369 ("standing is a threshold jurisdictional issue[.]") (citations omitted). The United States Court of Appeals for the Federal Circuit has held that a protestor can establish prejudice by showing a "substantial chance" that it would have received the award, but for the alleged error. See Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005) ("To establish prejudice Bannum was required to show that there was a `substantial chance' it would have received the contract award but for . . . errors in the bid process."); see also Statistica, Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir. 1996) ("To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a `substantial chance' that [it] would receive an award-that is was within the zone of active consideration.") (internal citations omitted) (emphasis and alterations in the original). Panels of the United States Court of Appeals for the Federal Circuit, however, have differed with respect to the evidence required to satisfy the "substantial chance" test in a bid protest case. Compare Info. Tech. & Applications, 316 F.3d at 1319 (a protestor must establish that its chance of winning the award is greater than insubstantial), with Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (holding that a protester is not required to show that, but for the alleged error, the protester would have been The term "`interested party,' with respect to a contract or a solicitation or other request for offers described in 28 U.S.C. § 1491(b)(1) requires . . . an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract[.]" 31 U.S.C. § 3551(2)(A). 14
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awarded the contract; instead a protester must show there was a `substantial chance' it would have received the contract but for the alleged error), with Data Gen., 78 F.3d at 1562-63 (holding "the appropriate standard is that, to establish prejudice, a protestor must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protestor would have been awarded the contract."). Our appellate court, however, has advised against placing undue weight on these semantic differences: "Rather than engage in verbal gymnastics, however, suffice it to say that Data General did not, as it could not, replace the "substantial chance" standard with a more demanding one." Statistica, 102 F.3d at 1582 (emphasis added); see also Myers, 275 F.3d at 1370 ("[T]he substantial chance rule continues to apply[.]"). Therefore, prejudice turns, in part, on the relationship between the protestor(s) and the specific procurement process that is being challenged, as well as the type of relief sought: In Impresa [Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001),] we considered the standard to be applied where the plaintiff claims that the government was obligated to rebid the contract (as contrasted with a situation in which the plaintiff claims that it should have received the award in the original bid process) . . . . To have standing, the plaintiff need only establish that it could compete for the contract if the bid process were made competitive . . . . plaintiff need not show that it would have received the award in competition with other hypothetical bidders, [but rather] must show that it would have been a qualified bidder. Myers, 275 F.3d at 1370-71 (emphasis added) (citations omitted); see also Alfa Laval, 175 F.3d at 1367 ("[T]o establish competitive prejudice, [the] protestor must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an award - that it was within the zone of active consideration.") (emphasis added) (citation omitted). 1. Plaintiff Has Standing.

The Government continues "to challenge the standing of ISC . . . to contest the competitive range determination where, as here, both offerors' proposals were included." Gov't Resp. II at 10 n.1; see also Gov't PH Br. at 20-22. a. As An "Interested Party."

ISC submitted a proposal in response to the initial Solicitation that was determined to be within the competitive range. See AR 2548. The four offerors in the competitive range proceeded to the "best value" determination. See AR 2559. Therefore, the Government's decision to award the contract to Symplicity directly affects the economic interests of ISC, the incumbent contractor. Accordingly, ISC is an "interested party." See 28 U.S.C. § 1491(b)(1); see also Am. Fed'n Gov't Employees v. United States, 258 F.3d 1294,1302 (2001) ("[W]e hold that standing under [28 U.S.C.] § 1491(b)(1) is limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.").

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b.

With A "Substantial Chance" Of Being Awarded The Contract.

As discussed above, the "substantial chance" test depends on the procurement context. The FBO procurement was a "best value" contract, based on both technical considerations and price. See AR 2559-62. ISC and Symplicity were considered the two best proposals, but the SSA ultimately awarded the contract to Symplicity. See AR 2561. Therefore, ISC established that it had a "substantial chance" of being awarded the contract and has standing. See RCFC 24(a); see also Myers, 275 F.3d at 1370; Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989) (holding that "the requirements for intervention are to be construed in favor of intervention."). 2. Both Intervenors Have Standing.

On October 26, 2007, the court granted DEVIS's Motion to Intervene, pursuant to United States Court of Federal Claims Rule ("RCFC") 24(a). The Government, however, asserts that DEVIS does not have standing to challenge the new SSA's Source Selection Decision. See Gov't Resp. II at 29. The Government maintains that DEVIS cannot establish prejudice, because ISC, not DEVIS, "followed Symplicity in the order of proposals that represented the best value to the Government," i.e., "even if the errors in [the SSA] evaluation alleged by DEVIS were corrected, the DEVIS proposal would not be within the zone of active consideration for award." Id. at 31.12 DEVIS counters that it has standing, because it has established a "direct economic interest." See Pl. Int. PH Br. at 4-5; see also Info. Scis. I, 73 Fed. Cl. at 93. In addition, the hierarchy set forth in the revised Source Selection Decision would have "`no weight' if DEVIS is correct that this SSA repeated the same mistakes as the first SSA." Pl. Int. PH Br. at 4-5; see also 11/29/07 TR at 75 (GOVERNMENT COUNSEL: "Even if the Court were to agree with that, say, you're right, DEVIS, the source selection authority got it wrong, that still puts DEVIS number two behind ISC." THE COURT: "No, it doesn't, because the source selection authority's second round opinion would have no weight [if it also violated FAR provisions]."). Indeed, "[g]iven the fact that the RFP stated that the SSA should have accorded more weight to the technical ratings," which were higher for DEVIS than for the competing offerors, "an evaluation compliant with the RFP would likely have resulted in an award to [DEVIS]." Pl. Int. PH Br. at 5. Accordingly, DEVIS also has established that it has a "substantial chance" of being awarded the FBO contract. See RCFC 24(a); see also Myers, 275 F.3d at 1370; Am. Mar. Transp., 870 F.2d at 1561.

See AR 2561 (Sept. 13, 2007 Source Selection Decision) ("As discussed above, DEVIS's proposal is technically superior to the other proposals in the competitive range. However, the price of the DEVIS proposal is [deleted] more than ISC and [deleted] more than Symplicity. The value to the government of the strengths of DEVIS's proposal does not warrant the price differential when compared to other offerors . . . . [I]n my judgment, there is no reasonable basis for spending an additional [deleted], much less an additional [deleted], for the technical strengths of the DEVIS proposal . . . . For these reasons, the DEVIS proposal does not represent the best value to the government. Because I have eliminated DEVIS and Aquilent as not representing the best value to the government, the award decision is between ISC and Symplicity proposals, both of which I determined to be `Acceptable' with `Confidence.'"). 16

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On December 11, 2007, the court granted Symplicity's December 3, 2007 Motion to Intervene, with the consent of all parties. See RCFC 24(a); see also 12/11/07 TR at 3-4. C. The Effect of Res Judicata On Claims Asserted In This Bid Protest.

The Government asserts that the doctrine of res judicata bars ISC from re-litigating the SSA's inclusion of proposed options in evaluating ISC's price proposal, because the court rendered a final judgment on the merits of this issue in Information Sciences I. See Gov't Resp. II at 28 (citing Info. Scis. I, 73 Fed. Cl. at 109) ("Since the SSA modified the Price Proposals of every offeror, ISC's argument that it was singled out for unfair treatment, is not supported by the Administrative Record."). Regarding this issue, the Government contends that ISC's Second Amended Complaint satisfies every element for res judicata to apply. See Gov't Resp. II at 28-29 ("First, the same party, ISC, brought both suits. Second, the first suit proceeded to a final judgment on the merits, and the court held that GSA's evaluation of ISC's price proposal had a rational basis; that `GSA did not abuse its discretion by considering ISC's proposed options;' and that `ISC's enhancements were within option years, requiring GSA to exercise those options in order to receive full performance from ISC . . . . Third, ISC's current [Second Amended] complaint is virtually identical to its complaint in the previous protest [.]"). See Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) ("A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action."). The Government also maintains that res judicata bars DEVIS from challenging the CO's determination that Symplicity's price was invalid, because this argument "could have [been] raised, and therefore should have [been] raised . . . at the prior protest in this case." Gov't PH Br. at 3-4 (citing Lowe v. United States, 79 Fed. Cl. 218, 228 n.12 (2007) (quoting Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) ("Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar.")). Issues concerning Symplicity's initial price proposal and the CO's actions relating thereto were known, or should have been known, in the prior protest so that DEVIS's price challenges are barred. Id. at 4. Res judicata applies when: the parties are identical or in privity; the first suit proceeded to a final judgment on the merits; and the second claim is based on the same set of transactional facts as the first. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979). In Information Sciences I, the court determined that "the Solicitation specified that option years would be included within the price analysis[, and that therefore], GSA did not abuse its discretion by considering ISC's proposed options." Info. Scis. I, 73 Fed. Cl. at 109. Moreover, "since the SSA modified the Price Proposals of every offeror, ISC's argument that it was singled out for unfair treatment, is not supported by the Administrative Record." Id. Because the court previously has determined that the GSA's inclusion of ISC's non-mandatory options was rational, res judicata bars this claim. The Government's invocation of res judicata regarding DEVIS's challenge of the CO's calculation of Symplicity's price, however, is without merit. Even though Information Sciences I concerned the same Solicitation and price proposals as in the instant case, the claim here is different, 17

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because it challenges the CO's actions in reconsidering the Competitive Range Determination, and therefore is not based on the same set of transactional facts as the prior litigation. See Parklane, 439 U.S. at 326 n.5 (Res judicata applies where the parties are identical or in privity; the first suit proceeded to a final judgment on the merits; and the second claim is based on the same set of transactional facts as the first.). In the initial Competitive Range Determination, the CO did not consider price at all. See Info. Scis. I, 73 Fed. Cl. at 115. Therefore, the court did not adjudicate that issue which is now ripe in this bid protest, i.e., whether the CO violated FAR 15.306 in considering Symplicity's price proposal to be $12,044,563, instead of $1,074,022 or [deleted], depending on how Symplicity's price proposal was interpreted. D. The Relevant Standards For Decision On The Administrative Record In A Bid Protest Case.

Pursuant to the Tucker Act, as amended by the ADRA, the United States Court of Federal Claims reviews challenges to agency decisions, pursuant to the standards set forth in the Administrative Procedure Act, 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) ("In any action under this subsection, the courts shall review the agency's decision pursuant to the standards set forth in section 706 of title 5."); see also 5 U.S.C. § 706(2)(A) ("The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]"). The United States Court of Appeals for the Federal Circuit has held that "a bid award may be set aside if either (1) the procurement official's decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure." Galen Med. Assocs., 369 F.3d at 1329 (citations omitted); see also Bannum, 404 F.3d at 1351 (holding that trial courts initially must determine if the Government "acted without rational basis or contrary to law when evaluating the bids and awarding the contract."); Banknote Corp., 365 F.3d at 1350 ("Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'") (citation omitted). A "disappointed bidder" bears a "heavy burden" of showing that an award decision had no rational basis. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001). This burden is even greater when the procurement is a "best value" procurement, as is the case here. See Galen Med. Assocs., 369 F.3d at 1330 ("[A]s the contract was to be awarded based on `best value,' the contracting officer had even greater discretion . . . the relative merit of competing proposals is primarily a matter of administrative discretion.") (citations omitted); see also Unisys Corp. v. Widnall, 98 F.3d 1325, 1327 (Fed. Cir. 1996) ("In determining whether the agency has complied with the regulation authorizing best value procurement the [reviewing authority] may overturn an agency's decision if it is not grounded in reason."). Accordingly, when the court finds a "reasonable basis" for an agency's action, the court should "stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations." Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (citation omitted); see also 18

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United States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (1983) (holding that the court may interfere with a Government procurement process "only in extremely limited circumstances"). This standard recognizes a zone of acceptable results in each particular case, but requires that the agency's final decision be the result of a process that "consider[s] the relevant factors" and is "within the bounds of reasoned decision making." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983); see also Impresa, 238 F.3d at 1333-34 ("[T]he test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.") (citation & internal quotations omitted). If a trial court finds that an agency's decision-making violates the APA standard, the court must then determine whether the bidder was prejudiced by the Government's action. See Bannum, 404 F.3d at 1351; see also Impresa, 238 F.3d at 1333 ("When a challenge is brought on the second ground, the disappointed bidder must show `a clear and prejudicial violation of applicable statutes or regulations.'") (citations omitted). Only if both requirements are satisfied will a claim on the merits of a bid protest succeed. Bannum, 404 F.3d at 1351; see also Galen Med. Assocs., 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., 78 F.3d at 1562) (alterations in original). Prejudice thus requires that the protestor show a "substantial chance" that it would have received the contract award, but for "errors in the bid process." See Bannum, 404 F.3d at 1358; see also Metcalf Constr. Co., Inc. v. United States, 53 Fed. Cl. 617, 622 (2002) ("[M]inor errors or irregularities, i.e., harmless errors, committed in the course of the procurement process are not sufficient grounds to warrant judicial intrusion to upset a procurement decision.") (emphasis added). Not every violation of the APA requires an equitable remedy. See PGBA, LLC. v. United States, 389 F.3d 1219, 1226 (Fed. Cir. 2004) ("We thus hold that, in a bid protest action, section 1491(b)(4) does not automatically require a court to set aside an arbitrary, capricious, or otherwise unlawful contract award.") (emphasis added). In PGBA, the United States Court of Appeals for the Federal Circuit affirmed the United States Court of Federal Claim's determination that a protestor's claim for injunctive relief should be denied on "public interest grounds," even though the plaintiff established prejudicial error in the underlying procurement. Id. at 1223 ("TMA had made several prejudicial errors in its evaluation of the technical merits of PGBA's and WPS's proposals . . . [however,] the [United States Court of Federal Claims] concluded that the balance of hardships and the public interest favored allowing TMA and WPS to proceed with the contract."). The United States Court of Appeals for the Federal Circuit concluded that "there is no evidence that Congress intended to abolish the tradition of equitable discretion in issuing injunctive relief when it enacted section 1491(b)(4) in ADRA." Id. at 1227; see also id. at 1226 ("This construction is consistent with the language of 28 U.S.C. § 1491(b)(2), which, through use of the permissive `may,' provides the United States Court of Federal Claims with discretion in fashioning relief."). Therefore, a procurement error does not necessarily require equitable relief, but requires the trial court to decide whether to issue the injunction. Id. at 1228-29 (listing the four factors that the trial court should employ in determining whether to issue a permanent injunction).

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E.

Motions For Judgment On The Administrative Record. 1. The Contracting Officer's April 18, 2007 Reconsideration Of Competitive Range Determination. a. Did Not Violate FAR 15.306, In Not Conducting Additional Offeror Discussions. i. Plaintiff's Argument.

ISC argues that the "GSA violated FAR 15.306(c)(1) by establishing a [new] competitive range [determination] based on initial proposals and then failing to conduct meaningful [offeror] discussions[.]" Sec. Am. Compl. ¶ 34 at 9 (citing 48 C.F.R. § 15.306(c)(1)) ("Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range."). ISC contends that the CO had two options: to evaluate the initial proposals, as received, and render an award without discussion; or to establish a competitive range and hold discussions. See Pl. Mem. II at 9 (citing AR 254). FAR requires meaningful negotiations "be held with each offeror in the competitive range­the only purpose for establishing a competitive range." Id. at 11 (citing 48 C.F.R. § 15.306(c)). Indeed, the CO's April 18, 2007 Reconsideration of Competitive Range Determination stated: Due to the number of minor price and technical issues associated with all of the proposals, technical and price discussions were anticipated for all offerors included in the competitive range. These discussions were expected to result in significant strengthening of technical proposals and further price clarity, which would lead to a final realistic, fair and reasonableness determination, and possibly provide for more favorable pricing for the Government. However, the discussions could not be conducted until the competitive range was established in accordance with FAR 15.306(c). Once the competitive range was determined, discussions would commence with each offeror in the competitive range, to resolve any issues that had surfaced during the initial technical and price evaluation. AR 2547 (emphasis added). ISC belittles the CO's excuse for not conducting additional discussions,13 since the CO was instructed to follow all applicable regulations, including FAR 15.306(c)(1). See Pl. PH Br. at 4-5. Moreover, the CO's decision not to conduct additional discussions was irrational, because "[n]o rational person would believe that best value for the highly complex, information technology-based Fedbizopps system could be obtained on technical proposals that were 2 ½ years old." Id. at 8. In fact, that is why the FBO Contract subsequently was modified. Id. at 7-8 (citing AR Tab 160 at 2)

See 11/29/07 TR at 91 (GOVERNMENT COUNSEL: "We . . . wanted to [hold discussions] because given what has happened so far, if we had done that and it wasn't in the Court's instructions, we would have wanted to tell--at least for the Court tell us you're allowed to do that."). 20

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(Nov. 8, 2007 "PS02" Modification of Contract); see also 48 C.F.R. § 15.306(d)(2) ("The primary objective of discussions is to maximize the Government's ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation."). ISC claims prejudice, because the lack of discussions prevented ISC from responding to identified weaknesses and making proposal improvements. See Pl. Mem. II at 12. In fact, "[a] search of each of the discussion documents in the [Administrative Record] presents no evidence that [an] alleged ISC `weakness' was ever discussed with ISC." Pl. PH Br. at 11 (citing AR 320-32, 36883); see also AR 2581 (Oct. 15, 2007 Debriefing for ISC) ("Enhancements ­ CLIN 0001 must be augmented at a minimum with Evolution A. CLIN 0001 plus Evolution A option together satisfy the government's requirement, failure to include vendor customization found in MyFBO option reduces the attractiveness of the proposed system."). Moreover, "at least one alleged weakness and one alleged deficiency in ISC's proposal, out of 6 identified, was never identified during the earlier negotiations," and "GSA could have and should have raised these issues after a proper competitive range determination rather than denying ISC the opportunity to revise its proposal and present the best overall value solution to the government." See Pl. PH Br. at 12 (citing AR 2580-83). In ISC's opinion, the CO's failure to conduct additional offeror discussions was a significant error, in light of technology changes in the past two and a half years. See Pl. Mem. II at 12-13; see also Pl. Mem. II Att. 1 (Aug. 2, 2005 Office Of Management And Budget Memorandum For The Chief Information Officers) ("[W]e have set June 2008 as the date by which all agencies' infrastructure (network backbone) must be using IPv6 and agency networks must interface with this infrastructure."); OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT , OMB MEM . NO . M-05-22, MANDATE TO UPGRADE TO IPV.6 BY 6-08, 2005, available at www.whitehouse.gov/omb.memoranda/fy2005/ m05-22.pdf. ii. The Government And Defendant-Intervenor's Responses.

The Government responds that, in setting aside the prior FBO contract award, the court did not order GSA to hold another round of discussions. See Gov't Resp. II at 11 (quoting Info. Scis. II, 75 Fed. Cl. at 414) ("GSA must reconsider the competitive range determination. Once GSA establishes a competitive range that complies with the terms of the Solicitation and the FAR, a newly appointed SSA may utilize existing technical and price evaluations to determine which proposal represents the `best value' to the agency."). GSA was to rely only upon existing price and technical ratings "once it reconsidered the competitive range." Id. at 12 (citing Info. Scis. II, 75 Fed. Cl. at 414). Moreover, "GSA already held discussions on original proposals with all offerors after the initial competitive range was set, thus satisfying even ISC's contorted interpretation of FAR 15.306." Id. at 13; see also Def. Int. PH Br. at 17 (citing AR 17-19). In fact, "repeated negotiations, requests for clarification, and other discussions [would result in] multiple revisions of initial proposals, rendering initial proposals meaningless[.]" Gov't Resp. II at 14. Therefore, the CO's decision "to follow the Court's instructions to the letter and not open new discussions was proper and within the CO's discretion." Id.; see also Def. Int. PH Br. at 17-18. The Government also contends that ISC misconstrues FAR 15.306. See Gov't Resp. II at 11-14. The "text of FAR 15.306 . . . states only that the agency must establish the competitive range if discussions are to be held." Id. at 11 (citing 48 C.F.R. § 15.306(c)(1)). "As a matter of logic and 21

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plain English, this does not mean that discussions must be held if a competitive range is established." Id. at 11-12. Moreover, FAR 15.306(a)(3) "confirms this by permitting [an] award without discussions if the solicitation states that the Government intends to evaluate proposals and make [an] award without discussions." Id. at 12. In addition, the FBO Solicitation "advised all offerors that an award could be made without discussions:" The Government may conduct negotiations with offerors whose proposals are determined to be within the competitive range. However, offerors are cautioned to submit proposals on the most favorable basis, as to price, delivery, or time of completion and other factors, since the government may elect to make an award without further discussions or negotiations. AR 254-55 (emphasis added). iii. The Court's Resolution.

ISC interprets FAR 15.306(c)(1) to mean that discussions are required if a competitive range is set. See Sec. Am. Compl. ¶ 34 at 9. The text of FAR 15.306(c)(1), however, provides that setting a competitive range is required only if discussions are to be conducted, but not the reverse. See 48 C.F.R. § 15.306(c)(1) ("[a]gencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be