MEDICAL DEVELOPMENT INTERNATIONAL, INC. GOVERNMENT HEALTHCARE SERVICES v. USA

Filing 34

PUBLISHED OPINION finding as moot 3 Motion for Preliminary Injunction; finding as moot 12 Application for Access to Protected Material; finding as moot 13 Application for Access to Protected Material; finding as moot 14 Application for Access to Protected Material; denying 20 Motion for Judgment on the Administrative Record; granting 22 Motion for Judgment on the Administrative Record; and granting in part and denying in part 31 Motion to Redact. Signed by Chief Judge Emily C. Hewitt. (md3)

M E D I C A L DEVELOPMENT INTERNATIONAL, INC. GOVERNMENT HEALTHCARE SERVICES v. USA

D o c . 34

In the United States Court of Federal Claims
N o . 09-502C (E -F iled : October 27, 2009 Under Seal) (R e f ile d : November 18, 2009)1 ________________________________ ) M E D IC A L DEVELOPMENT ) IN T E R N A T IO N A L , INC. ) G O V E R N M E N T HEALTHCARE ) S E R V IC E S , ) ) P l a in tif f , ) ) v. ) ) T H E UNITED STATES, ) ) D e f e n d a n t. ) ________________________________ )

P r e -A w a rd Bid Protest; Standard of R e v ie w ; Whether Exclusion of P la in tif f from Competitive Range D e p riv e d Plaintiff of Standing; Failure to D e m o n s tra te Error

R o b e rt G. Barbour, McLean, VA, for plaintiff. Timothy E. Heffernan, McLean, VA, of c o u n se l. J e f f e ry D. Klingman, with whom were Tony West, Assistant Attorney General, Jeanne E. D a v id s o n , Director, Mark A. Melnick, Assistant Director, Commercial Litigation Branch, C iv il Division, U.S. Department of Justice, Washington, DC, for defendant. William D. R o b in so n , Federal Bureau of Prisons, Washington, DC, of counsel. O P IN IO N T h is is a pre-award bid protest brought by Medical Development International, Inc.

This Opinion was filed under seal on October 27, 2009. The court requested that if any party believed that the October 27, 2009 Opinion contained protected material that should be redacted before publication, that party shall, by motion filed on or before November 9, 2009 (that date was extended at the parties' request, to November 16, 2009) request that such protected material be redacted. The court has received the Joint Motion to Redact Protected Materials (Joint Motion) requesting redactions. The court now GRANTS-IN-PART the Joint Motion and publishes the Opinion as so redacted. Redactions are indicated by [***].

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Dockets.Justia.com

G o v e rn m en t Healthcare Services (MDI), an unsuccessful offeror in Solicitation COA0 0 0 3 (Solicitation) by the United States government acting through the Federal Bureau of P r is o n s (the government, defendant or BOP). Complaint for Declaratory and Injunctive R e lief (plaintiff's Complaint or Compl.) ¶¶ 1-4, 23. BOP issued the Solicitation for this b e st value procurement on September 16, 2008, seeking proposals to provide c o m p r e h e n siv e medical services at the Federal Correctional Complex in Coleman, Florida (F C C Coleman). Id. at ¶ 4. BOP announced its competitive range determination and MDI le a rn e d it was excluded from the competitive range on June 30, 2009. Administrative R e c o rd (AR) 810. On July 31, 2009, plaintiff filed its Complaint and its Motion for P re lim in a ry Injunction (plaintiff's Motion for Preliminary Injunction or Pl.'s Mot. Prelim. In j.). At a status conference on August 4, 2009, the court ordered briefing to permit the c o u rt to address, at one time, the merits of the Complaint and plaintiff's entitlement to in ju n c tiv e relief. Order of August 6, 2009. P lain tiff asserts that BOP abused its discretion and acted arbitrarily and capriciously b y failing to evaluate proposals in accordance with the criteria described in the S o licita tio n . Compl. ¶ 25. MDI asserts that BOP's failure to evaluate the bids properly re s u lte d in plaintiff's exclusion from the competitive range. Id. Specifically, MDI asserts that there was no objective basis for BOP's price d e te rm in a tio n and that the price determination was therefore arbitrary and capricious. Id. a t ¶¶ 25-27. While the Solicitation required that prices remain firm only until April 1, 2 0 0 9 , AR 167, 200, the competitive range was not determined until June 30, 2009. AR 8 1 0 . MDI asserts that BOP could not objectively determine prices after April 1, 2009, b e c au s e prices were no longer firm after that date. Compl. ¶ 26. MDI asserts that, without f ir m prices, any determination of price was necessarily arbitrary and capricious because B O P had no objective prices on which it could rely. Id. at ¶¶ 25-26. M D I further asserts that BOP failed to balance price and non-price factors equally a s required by the Solicitation. Id. at ¶¶ 28-30. Finally, MDI asserts that BOP improperly b a la n c e d price and non-price factors in a way that was unreasonable and arbitrary, re s u ltin g in plaintiff's exclusion from the competitive range. Id. at ¶¶ 30-32. Plaintiff requests that the court declare BOP's decision to exclude plaintiff from the c o m p e titiv e range erroneous and arbitrary. Id. at ¶ 34(a). MDI seeks to be reinstated a m o n g the offerors in the competitive range and to be included among offerors eligible to s u b m it a "Best and Final Offer" for award of the contract. Id. at ¶ 34(c). Plaintiff also s e e k s "its bid preparation costs and costs of this Protest, including its attorneys fees, and, su ch other and further relief as is deemed just and proper." Id. at ¶ 34(d)-(e).

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P u r s u a n t to the court's Scheduling Order of August 4, 2009, the government filed th e Administrative Record (AR).2 Plaintiff filed a Motion for Judgment on the A d m in is tra tiv e Record (plaintiff's Motion or Pl.'s Mot.) on August 21, 2009.3 Defendant filed its Motion for Judgment on the Administrative Record (defendant's Motion or Def.'s M o t.) on August 28, 2009.4 I. Background

O n September 16, 2008, BOP issued the Solicitation for an indefinite d e liv e ry/re q u ire m e n ts -typ e contract with firm fixed unit prices to provide medical services to FCC Coleman. AR 129, 162. The contract is for one base year with four one-year ren ew al options at the unilateral discretion of the Government. AR 139, 162. The award w o u ld be based on a three-volume submission consisting of: (1) a technical proposal; (2) a past performance proposal; and (3) a business or price proposal. AR 167. The S o l ic ita tio n provides that BOP will award the contract to the bidder who offers the "best v a lu e to the Government" in accordance with the criteria set forth in the Solicitation. AR 7 . The Solicitation advises offerors that there could be a limited competitive range d eterm inatio n prior to discussions or, alternatively, that BOP could make the award w ith o u t discussions. AR 170 ("Offerors are also advised that a contract award may be m ad e without discussions . . . ."). F o u r offerors responded to the Solicitation: MDI, [***], [***] and [***]. AR 810. MDI submitted three separate proposals (MDI-A, MDI-B and MDI-C). AR 202.1-337. [***], [***] and [***] each submitted [***]. AR 338-608. T h e Solicitation sets forth the criteria BOP would use in making the award. AR 1 7 0 -7 3 . The award will be made to the offeror whose bid is "in the best interest of the G o v ern m en t, price and other factors considered. In this tradeoff process, non-price factors (w h e n combined) are approximately equal to price." AR 171. Non-price factors include

On August 20, 2009, defendant filed an unopposed Motion Seeking Leave to Correct the Administrative Record (AR) and filed a corrected AR. Plaintiff's Motion for Judgment on the Administrative Record (plaintiff's Motion or Pl.'s Mot.) did not indicate under what rule it is seeking relief. The court assumes that plaintiff intended to seek judgment on the AR pursuant to Rule 52.1(c) of the Rules of the Court of Federal Claims (RCFC). Defendant filed its Motion for Judgment on the Administrative Record (defendant's Motion or Def.'s Mot.) pursuant to Rule 52.1(c) of RCFC. Def.'s Mot. 1. 3
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te c h n ic a l criteria, past performance and the participation of small disadvantaged b u s in e ss e s (SDBs). AR 4-7, 170-71. "Technical criteria and past performance are of e q u a l value. SDB participation criteria is less significant than technical and past p e rf o rm a n c e (when considered on an individual basis)." AR 171. Based on the p a re n th e tic a l clause ("when considered on an individual basis") coming after the words " te c h n ic a l and past performance," the court understands the weight of SDB participation a s an evaluation factor to be less than either technical or past performance. The S o lic ita tio n further advises all offerors that price could be the determining factor between a n d among proposals that are considered to be equal under non-price factors. AR 172 (" O f f ero rs are advised that should the offerors' proposals be considered approximately the s a m e or equal under non-price factors, price could be paramount in the selection d e c i s io n . " ) . T h e Solicitation provides for a separate evaluation of each non-price factor in c l u d in g past performance, inclusion of SDBs and the technical proposal. AR 4-6. Past p e rf o rm a n c e evaluations were reviewed and scored by the Contracting Officer (CO), Scott S a ra yu s a . AR 58. The CO assigned a rating [***] to each offeror based on the e v a lu a tio n s . Id. A [***] rating indicates the offeror's past performance [***] and [***]. AR 6, 58. A [***] rating indicates that the offeror's past performance [***]. Id. A [***] ra tin g indicates that the offeror's past performance [***]. Id. A [***] rating indicates that th e offeror's past performance record [***]. Id. An offeror with [***] receives a [***] ra tin g . AR 6. The evaluation of past performance is based on "subjective assessment" and "is a m a tte r of judgment." AR 610. A [***] rating would be given to an offeror that [***]. AR 6. A [***] rating would be given to an offeror that [***]. Id. A [***] rating would b e given to an offeror that [***]. Id. A [***] rating would be given to an offeror that [ * * * ]. Id. Every offeror received a [***] for its past performance reviews except [***] w h ic h received a [***]. AR 809. P r o p o s a ls were also to be rated regarding the participation of SDBs. AR 6. The S o lic ita tio n provided that a [***] rating would be given to an offeror that [***]. [***] m e e ts or exceeds the Bureau of Prisons' goal for subcontracting with SDBs, currently 6 p e rc e n t [***]. Id. A [***] rating would be given to an offeror that [***]. Id. A [***] ra tin g would be given to an offeror that [***]. Id. All offerors received a [***] rating for le v e l of SDB participation except [***], which received a [***] rating. AR 807. T h e Solicitation requires that an offeror provide certain health care services in eight c a te g o rie s. AR 7. Each offeror was required to propose its price for each of the eight c a teg o rie s. Id. The eight categories are: inpatient facility services, outpatient facility 4

s e rv ic e s, inpatient physician services, outpatient physician services, outpatient institution s e rv ic e s (other physicians), outpatient institution services (optometrist), outpatient in s titu tio n services (oral surgeon) and outpatient institution services (dietician). Id. Each o f f ero r was required to list its price as a premium to or discount from the established M ed icare rate for each service: "price proposals will be calculated from the benchmark M e d ic a re rate in the form of a discount from or premium to Medicare rates established by th e Centers for Medicare and Medicaid services." 5 AR 138. In the evaluation process, the p ric e proposal is worth approximately the same as non-price factors combined: "non-price f a c to rs (when combined) are approximately equal to price" factors. AR 171. [***]. AR 7 . The Solicitation therefore provides two external benchmarks for the CO to use to d e te rm in e the reasonableness of the offerors' prices: [***] and Medicare prices. AR 7, 1 3 8 . Out of a possible total of [***], the resulting price scores for each offeror are: MDIA : [***], MDI-B: [***], MDI-C: [***], [***], [***], and [***]. AR 800-05. The Solicitation requires that all offerors hold their prices firm for 120 days after th e December 2, 2009 deadline for submissions of offers. AR 167, 200. The prices in the o f f ero rs ' proposals were therefore firm until April 1, 2009. AR 167, 200. However, the c o m p e titiv e range determination was not made until June 30, 2009, three months after the o f f ero rs ' firm prices had expired. See AR 810. T h e final component of the Solicitation was the evaluation of technical proposals. AR 4. Pursuant to the Solicitation, the CO assembled a Technical Evaluation Panel to re v iew the technical proposal of each offer. AR 56, 170. The panel members were: [***]. AR 55-56. [***], was appointed chairperson. AR 55-56. Members of the panel [ * * * ]. AR 750-52, 759-61, 763-65, 777-79, 786-88, 794-96. The panel then [***]. AR 7 4 4 -4 9 , 753-58, 766-76, 780-85, 789-93; see AR 59. The evaluators were directed to [ * * * ]. AR 58-59. At the [***]. AR 744-49, 753-58, 766-76, 780-85, 789-93; see AR 59. [***]. AR 59. [***] [***] A R 57-58. Technical criteria included four sub-factors of equal importance that the evaluators w e re instructed to consider in making their determinations: diversity of services, distance
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The pricing methodology section continues: "[t]his structuring of the pricing methodology is not intended to be restrictive of any offeror; offerors need only to propose that percentage discount from or premium to the Medicare benchmark rate which will reflect the desired level of payment for the category of services rendered." AR 138. 5

b e tw e e n FCC Coleman and proposed health care facilities, enhancements to the basic co n trac t requirements, and accreditation status of the proposed facilities. AR 4. There w a s no technical requirement that offerors have contracts in place at the time they s u b m itte d bids. See AR 4. Accordingly, the status of an offeror's contracts with the h e a lth care facilities was not a criterion that members of the panel were directed to c o n sid e r. See id. Regarding the accreditation of the health care facilities, the Solicitation s ta te d a preference that facilities be accredited by the Joint Commission on Accreditation o f Healthcare Organizations (Joint Commission). AR 134; see AR 486 (reciting the full n a m e of the Joint Commission). However, the Solicitation permitted offerors to include in th e ir proposals facilities that were accredited by "any other recognized accrediting body." AR 134. The Solicitation directed offerors to submit proof of accreditation for all health c a re facilities regardless of whether the health care facility was accredited by the Joint C o m m is s io n or by a different accrediting body. Id. E a c h member of the technical panel was directed to [***]. AR 57-58. [***] in d ic a te s [***] proposal that [***]. AR 4, 58. [***] indicates [***] proposal that [***]. Id. [***] indicates [***] proposal that [***]. Id. [***] indicates [***] proposal that [ * * * ]. 6 AR 4, 59. E a c h evaluator on the technical panel was to [***]. AR 4, 58. After each evaluator [ * * * ], the chairperson was to [***]. AR 59. The responsibility to [***] belonged to the c h a irp e rs o n , but all evaluators had the opportunity to [***]. AR 59-60. After [***], the c h a irp e rs o n was to [***]. AR 59. The CO was to [***]. AR 58. MDI-A and MDI-B received ratings of [***]. AR 749-52, 758-61. MDI-C rec eive d [***]. AR 762-70. MDI-C is the only proposal that received a rating of [***], f o r its technical proposal. AR 763-65. [***] received [***]. AR 776-79. [***] received [ * * * ]. AR 785-88. [***] received [***]. AR 789, 794-96. In making the competitive range determination, the CO was able to consider not o n ly the [***], but also the [***]. AR 59. In addition to the [***]and the [***], the CO a ls o weighed the past performance reviews, SDB participation and price evaluations. AR 5 9 -6 0 , 810. All of the non-price factors ­ past performance, technical proposal and SDB p a rtic ip a tio n ­ when combined, are approximately equal to the price. AR 171. Although th e documentation of the competitive range determination is not described in the S o lic ita tio n in language similar to the description of the documentation of the trade-off
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[***]

AR 4. 6

b e tw e e n price and non-price factors to be made in determining the final award, the AR c o n ta in s a record of the tradeoff, prepared by the CO. AR 810. The record of the tradeo f f process contains the ratings each offeror received and the CO's impression of each o f f ero r. AR 810-11. In a document dated June 30, 2009, the CO summarized the offerors' past p e rf o rm a n c e, SDB, and technical evaluation scores and the offerors' prices as part of the c o m p e titiv e range determination. AR 809-10. The CO determined MDI's pricing to be [ * * * ]." AR 810. The CO determined that [***]. Id. The CO also determined that the o f f e rs of [***] and [***] were "technically acceptable, offer [***] pricing, and would only re q u ire minor revisions to be eligible for award." Id. B O P 's [***] contains a [***], describing [***]. AR 59-60. Only [***] are in v o lv e d in this bid protest. See generally Pl.'s Mot. passim. The [***] brought the p ro c e ss to the competitive range determination that is at issue in this case. [***] come into p l a y once a competitive range is determined. The [***] are as follows: [***] A R 59-60 (typeface altered). The [***] do not describe in detail how the competitive ra n g e is determined, simply noting [***] that if discussions are determined to be n e c e s s a ry, that the CO will determine the [***] competitive range, i.e., the most highlyra te d proposals considered for the award [***]. AR 59. Based on the CO's decision, only [***] and [***] remained under consideration a f te r the competitive range determination.7 BOP notified [***] and MDI on June 30, 2 0 0 9 , that their proposals would be eliminated from consideration. AR 812-16. On July 31, MDI filed this protest. The court held oral argument on the parties' m o tio n s on September 15, 2009. See Oral Arg. Tr. For the following reasons, plaintiff's M o tio n is DENIED and defendant's Motion is GRANTED. II. Legal Standards

Medical Development International, Inc. Government Healthcare Services (MDI) filed a protest with the Government Accountability Office (GAO) on July 9, 2009. Pl.'s Mot. 11. GAO dismissed the protest on July 20, 2009 on the grounds that MDI failed to provide any information supporting its allegation that the decision to eliminate its proposal from the competitive range was based on price. Id. 7

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A.

Bid Protest Standard of Review

T h e Tucker Act, as amended by the Administrative Dispute Resolution Act (A D R A ), 28 U.S.C. § 1491(b) (2006), confers jurisdiction on this court to render judgment on an action by an interested party objecting to a s o lic ita tio n by a Federal agency for bids or proposals for a proposed contract o r to a proposed award or the award of a contract or any alleged violation of s ta tu te or regulation in connection with a procurement or a proposed p ro c u re m e n t. 2 8 U.S.C. § 1491(b)(1). The court reviews a bid protest action under the standards set f o rth in the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2006). 28 U.S.C. § 1 4 9 1 (b )(4 ); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). The A P A provides that an agency's decision is to be set aside if it is "arbitrary, capricious, an a b u se of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Bannum, Inc. v. United States (Bannum), 404 F.3d 1346, 1351 (Fed. Cir. 2005); G alen Med. Assocs., Inc. v. United States (Galen), 369 F.3d 1324, 1329 (Fed. Cir. 2004); Im p re sa Construzioni Geom. Domenico Garufi v. United States (Impresa), 238 F.3d 1324, 1 3 3 2 (Fed. Cir. 2001); Advanced Data Concepts, Inc. v. United States (Advanced Data C o n ce p ts), 216 F.3d 1054, 1057 (Fed. Cir. 2000). U n d e r the arbitrary or capricious standard of review, an agency's decision must be s u s ta in e d if it has a rational basis. Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. S ta te Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). "The arbitrary and capricious sta n d a rd applicable here is highly deferential. This standard requires a reviewing court to s u s ta in an agency action evincing rational reasoning and consideration of relevant factors." Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. ArkansasB e st Freight Sys., Inc., 419 U.S. 281, 285 (1974)). In particular, the reviewing court may n o t substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v . Volpe (Overton Park), 401 U.S. 402, 416-20 (1971), abrogated in part by Califano v. S a n d e rs, 430 U.S. 99, 105 (1977) (abrogating Overton Park by recognizing that the APA is a n independent grant of subject-matter jurisdiction). In a "best value" procurement, g re a te r deference is given to the agency than "if the contract were to have been awarded o n the basis of cost alone." Galen, 369 F.3d at 1330 (citing E.W. Bliss Co. v. United S ta te s (E.W. Bliss), 77 F.3d 445, 449 (Fed. Cir. 1996)). Under the APA standards, as applied in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 8 5 9 (D.C. Cir. 1970), and now under the ADRA, "a bid award may be set aside if either: (1) the procurement official's decision lacked a rational basis; or (2) the procurement 8

p ro c e d u re involved a violation of regulation or procedure." Impresa, 238 F.3d at 1332. To succeed, a disappointed bidder alleging a lack of rational basis must show the decision w a s "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the la w ." 5 U.S.C. § 706(2)(A). Challenges to decisions on the basis of a violation of a re g u la tio n or procedure "must show a clear and prejudicial violation of applicable statutes o r regulations." Impresa, 238 F.3d at 1333 (internal quotation and citation omitted). In any case, in order to prevail in a bid protest, a "protestor must show not only a s ig n if ic a n t error in the procurement process, but also that the error prejudiced [the p r o te s to r ]." Data General Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); see also A lfa Laval Separation, Inc. v. United States (Alfa Laval), 175 F.3d 1365, 1367 (Fed. Cir. 1 9 9 9 ). If the court finds that there is no error, there is no prejudice and BOP's decisions m u s t be left undisturbed. Alfa Laval, 175 F.3d at 1367 (requiring that a protestor establish " sig n if ica n t, prejudicial error" to prevail in a bid protest). The first step is to demonstrate e rro r; to show that the agency acted in an arbitrary and capricious manner, without a ra tio n a l basis or contrary to law. See Bannum, 404 F.3d at 1351. The next step is to d e te rm in e whether the error was prejudicial. See id. "[B]ecause the question of prejudice g o es directly to the question of standing, the prejudice issue must be reached before a d d re ss in g the merits." Labatt Food Serv. Inc. v. United States, 577 F.3d 1375, 1378 (Fed. C ir. 2009) (quoting Info. Tech. & Applications Corp. v. United States (Info. Tech.), 316 F .3 d 1312, 1319 (Fed. Cir. 2003)). "Non-prejudicial errors in a bid process do not a u to m a tica lly invalidate a procurement." Id. at 1380. The plaintiff must demonstrate both th a t an error occurred and that such error was prejudicial. Data General Corp., 78 F.3d at 1562. In the context of a post-award bid protest, "the plaintiff must demonstrate `s u b s ta n tia l prejudice' by showing that there was a `substantial chance' it would have been a w a rd e d the contract but for the agency's error." Weeks Marine, Inc. v. United States (W e e k s Marine I), 79 Fed. Cl. 22, 35 (2007) (internal citation omitted), aff'd in relevant p a rt, 575 F.3d 1352 (Fed. Cir. 2009) (Weeks Marine II). However, when a plaintiff brings a pre-award protest, the plaintiff need show only "that an unreasonable agency decision `c re a te d a non-trivial competitive injury which can be redressed by judicial relief.'" Weeks Marine II, 575 F.3d at 1363 (quoting WinStar Commc'ns, Inc. v. United States (W in S tar ), 41 Fed. Cl. 748, 763 (1998)). The different standards for pre-award and posta w a r d relief result from the fact that the post-award "substantial chance" test "envisions a re v ie w of the contract award or bid evaluation process to determine what might have o c c u rr e d 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 e v e n begun." Id. (quoting WinStar, 41 Fed. Cl. at 763 n.9). The key difference is the level o f factual development at the time of the protest. The Federal Circuit recently concluded 9

that the "non-trivial injury" test, as articulated by the Court of Federal Claims in WinStar, s trik e s the appropriate balance in pre-award cases. Weeks Marine II, 575 F.3d at 1363. Here, MDI lodged its protest before the contract was awarded, but after the c o m p e titiv e range had been determined. See Compl ¶¶ 19, 23. Plaintiff was not included in the competitive range, and its exclusion prompted this protest. See AR 810; Compl. ¶ 34. MDI is not seeking to upset an award, because no award has yet been made. However, there has been "a bid evaluation process" which the court can review to d eterm ine whether the government erred. See AR 810. This case is therefore d i stin g u i sh a b le from both post-award protests and pre-award, solicitation-based protests, w h e re the unsuccessful bidder is challenging an aspect of the procurement prior to the e v a lu a tio n of the offers. MDI is challenging neither the terms of a solicitation in a prea w a rd protest nor an actual award in a post-award protest. The factual record in this case is fully developed regarding the disputed issue: the c o m p e titiv e range determination. Notably, however, BOP's Solicitation did not require, a n d the CO did not compile, a written record of detailed balancing. See AR 7 (requiring [* * * ], but not [***]). T h e competitive range determination and the process the CO used to make the d e te rm in a tio n has been completely recorded to the extent required by the Solicitation. See A R 59-60. The court has sufficient evidence to determine, based on the record submitted, w h e th e r the competitive range determination was the result of a prejudicial error. The c o u rt finds that because this post-competitive range challenge to the competitive range d e te rm in a tio n is sufficiently analogous to a post-award challenge to award, the "su b stan tial chance" test is the appropriate standard under which to evaluate plaintiff's c la im . "Prejudice is a question of fact." Bannum, 404 F.3d at 1353. To establish p re ju d ic e , the plaintiff must prove that "there was a `substantial chance' it would have re c eiv e d the contract award but for the errors." Id. (quoting Info. Tech., 316 F.3d at 1 3 1 9 ). Only if plaintiff is able to demonstrate that BOP's determinations were "arbitrary, c a p ric io u s , an abuse of discretion, or otherwise not in accordance with the law," 5 U.S.C. § 706(2)(A), does the court consider whether MDI had a "substantial chance" of receiving th e award but for the error. Bannum, 404 F.3d at 1351, 1353. B. S t a n d in g

B id protests can be brought only by interested parties. Am. Fed'n of Gov't E m p lo ye e s v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001). Under the ADRA, an " in te re ste d party" is "limited to actual or prospective bidders or offerors whose direct e c o n o m ic interest would be affected by the award of the contract or by failure to award the 10

c o n tra c t." Id. In the context of a post-award protest, the Federal Circuit has further d e f in e d "interested party" as a party having "greater than an insubstantial chance of s e c u rin g the contract if successful on the merits of the bid protest." Info. Tech., 316 F.3d a t 1319. In the context of a post-award protest, "[t]he term `interested parties' excludes tho se who did not submit proposals, bidders who withdrew from a solicitation and offerors w h o were not competitively ranked for award." Microdyne Outsourcing, Inc. v. United S tates (Microdyne), 72 Fed. Cl. 230, 232 (2006) (citing Impresa, 238 F.3d at 1334). In this case, all of MDI's proposals were excluded from the competitive range. AR 8 1 5 . In the context of a post-award protest, exclusion from the competitive range has been f o u n d to preclude a bidder from challenging the later award. Microdyne, 72 Fed. Cl. at 2 3 2 . However, MDI is not challenging an award that has been made, but rather its prea w a rd exclusion from the competitive range. If MDI's exclusion from the competitive range deprives it of pre-award standing to c h a lle n g e the competitive range determination, the exclusion could have the frustrating resu lt of depriving MDI completely of any possibility of judicial relief. Even if MDI's e x c lu s io n from the competitive range could deprive it of standing to challenge a later aw ard , it does not, in this court's view, deprive it of standing to make a pre-award c h a lle n g e to the competitive range determination. Cf. Myers Investigative & Sec. Servs., I n c . v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (including "offerors whose d ire c t economic interest would be affected by the award of he contract" as interested p a rties ). In the factual circumstances of this case, where MDI has shown that one of its p ro p o s a ls , MDI-C, was recognized as having [***], the court finds that MDI is an in te re ste d party with a direct economic interest sufficient to establish standing. C. M o tio n s for Judgment on the Administrative Record

Rule 52.1 of the Rules of the Court of Federal Claims (RCFC) provides for ju d g m e n t on the administrative record "[w]hen proceedings before an agency are relevant to a decision in a case" before the court. RCFC 52.1(a). RCFC 52.1 does not address the s ta n d a rd s and criteria to be applied in cases decided pursuant to RCFC 52.1 because "[t]he s ta n d a rd s and criteria governing the court's review of agency decisions vary depending u p o n the specific law to be applied in particular cases." RCFC 52.1 Rules Comm. Note (2 0 0 6 ). Accordingly, the standards of review and burdens of proof and persuasion are set b y the terms of the applicable substantive law, including, in this case, statutory and case la w discussed above in Part II.A. A court reviewing a best value procurement agency action must be highly d e f ere n tia l, and the agency that made the determination in question is presumed to have 11

a c te d in a reasonable and rational manner. Advanced Data Concepts, 216 F.3d at 1058; F o rt Carson Support Servs. v. United States (Fort Carson), 71 Fed. Cl. 571, 586 (2006). A p lain tiff must rebut the presumption of a rational basis in order to upset the agency's f in d in g s. L-3 Commc'ns EOTech, Inc. v. United States, (L-3 Commc'ns), 87 Fed. Cl. 6 5 6 , 664 (2009); see Advanced Data Concepts, 216 F.3d at 1050. In determining whether a n agency acted rationally, the court is particularly deferential to the agency's technical e v a lu a tio n . L-3 Commc'ns, 87 Fed. Cl. at 664. "In particular, the evaluation of proposals f o r their technical excellence or quality is a process that often requires the special expertise o f procurement officials, and thus reviewing courts give the greatest deference possible to thes e determinations." Fort Carson, 71 Fed. Cl. at 586 (citations omitted). " C o n tra c tin g officers are not obligated by the APA to provide written explanations f o r their actions." Impresa, 238 F.3d 1337. Moreover, agency actions are entitled to a p re su m p tio n of "regularity." Id. at 1338. There is a "strong presumption that government o f f ic ia ls act correctly, honestly, and in good faith when considering bids." Savantage Fin. S e rv s ., Inc. v. United States (Savantage), 86 Fed. Cl. 700, 703-04 (2009). The court will not second-guess the ratings given by procurement officials that in v o lv e discretionary determinations. E.W. Bliss, 77 F.3d at 449. The question for the c o u rt is not whether the agency is correct or whether the court would have reached the s a m e conclusion as the agency did, but whether there was a reasonable basis for the a g e n cy's actions. Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (" If the court finds a reasonable basis for the agency's action, the court should stay its h a n d even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations."). III. D is c u ss io n B e f o re considering the merits of MDI's various arguments, the court summarizes

12

th e offerors' scores in the chart below. MDI-A T e c h n ic a l Past P e rf o rm a n c e SD B P r ic e [***] [***] [***] [***] M D I-B [***] [***] [***] [***] M D I-C [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]

A ll offerors earned a [***] rating for past performance, with the exception of [***] which re c eiv e d a neutral rating. AR 809. MDI-A and MDI-B received [***] technical ratings a n d MDI-C received a [***] technical rating. AR 744-70, 809. Both [***] and [***] e a rn e d a [***] rating for their technical proposals. AR 771-79, 809. [***] earned a rating o f [***] for its technical proposal. AR 780-88, 809. All proposals earned [***] for their p ro p o s e d SDB participation except [***], which earned a [***] rating. AR 807, 809. The f in a l price evaluation scores were as follows, with [***] being the highest score possible: MDI-A: [***], MDI-B: [***], MDI-C: [***], [***], [***]; and [***]. AR 800-05, 809.

M D I submitted three separate proposals for consideration. AR 202.1-337. Each p ro p o sa l offered [***]. AR 202.1-337. Each of MDI's proposals was scored separately a n d , of the three proposals submitted by MDI, MDI-C received [***]. See AR 770, 809. In its Motion, MDI focused its arguments on the exclusion of MDI-C from the competitive ra n g e . See Pl.'s Mot. passim. MDI argues that the MDI-C proposal should have been in c lu d e d in the competitive range, emphasizing that it was the only proposal to receive a [ * * * ] for its technical proposal. Id. at 2-3. Among the non-MDI offerors, [***] was e x c lu d e d from the competitive range and MDI makes almost no mention of [***] in its a rg u m e n ts . See id. passim. As does MDI, the court will focus on BOP's evaluation of p rop o sals by MDI-C, [***] and [***]. T h e CO prepared a two-page competitive range determination, outlining the scores th a t each offeror received and his balancing. AR 810-11. The CO set out MDI's scores in ea ch category for each of its three proposals. AR 810. The CO determined that MDI-C re c e iv e d [***] for its technical proposals and for its past performance. Id. The CO c o n c lu d e d by noting that "[***]." Id. The CO noted [***]'s scores and concluded that " [ * * * ]." Id. After listing the scores that [***] and [***] received, the CO concluded that " th e competitive range [would] consist of [***] and [***]. Their proposals have been 13

d e te rm in e d technically acceptable, offer [***] pricing, and would only require minor re v is io n s to be eligible for award." Id. M D I asserts that BOP acted arbitrarily and unreasonably resulting in five errors. First, BOP failed to perform an "objective evaluation" to determine if the prices were re a so n a b le , specifically because it failed to evaluate the prices before the expiration of f ir m price offers. Pl.'s Mot. 16-20. Second, BOP failed to determine the reasonableness o f the offered prices. Id. at 16-18. Third, BOP erroneously scored [***]'s past p erf o rm an ce [***] instead of [***]. Id. at 26-27. Fourth, BOP erroneously scored [***]'s a n d [***]' technical evaluations [***] instead of [***]. Id. at 28-32. MDI argues that the e v a lu a tio n process ignored technical concerns about [***] articulated by evaluator [***] a n d that two errors in BOP's technical evaluation of [***] contributed to MDI's exclusion f ro m the competitive range: first, that the health care facilities used by [***] are too far a w a y from FCC Coleman, id. at 29, and second, that only one of the health care facilities u se d by [***] is accredited, id. Finally, MDI asserts that BOP improperly and irrationally w e ig h e d price and non-price factors in making the competitive range determination. Id. at 2 0 -2 5 . MDI asserts that the correction of errors in BOP's evaluation of the proposals w o u ld result in MDI's inclusion in the competitive range. See id. at 16-32. The court a d d re ss e s each issue in turn. A. 1. P r ic in g F irm Price

T h e Solicitation required that all offerors hold their prices firm for 120 days after th e December 2, 2009 deadline for submissions of offers. AR 167, 200.8 The prices in the o f f ero rs ' proposals therefore remained firm until April 1, 2009. Id. The competitive range d e te rm in a tio n was not made until June 30, 2009, three months after the firm prices of the o f f e ro rs had expired. AR 810. Contract formation requires that an offer must be definite e n o u g h to demonstrate the mutual intent of the parties to contract with one another. Tree F a rm Dev. Corp. v. United States, 585 F.2d 493, 499-500 (Ct. Cl. 1978); Russell Corp. v. U n ited States, 537 F.2d 474, 482 (Ct. Cl. 1976); see Restatement (Second) of Contracts § 24 (1981) ("An offer is the manifestation of willingness to enter into a bargain, so made a s to justify another person in understanding that his assent to the bargain is invited and w ill conclude it."). An offer need not include a firm price and a firm price is not necessary to form a Amendment 2 of the Solicitation extended the deadline for submission of offers until December 2, 2008. AR 200. 14
8

c o n tra c t if the offer is sufficiently definite to establish that both parties intend to contract. Tree Farm Dev. Corp, 585 F.2d at 500; see Russell Corp., 537 F.2d at 482. The issue for th is court is whether BOP's reliance on [***]'s and [***]' prices for the purpose of d e te rm in in g the competitive range was rational even though the prices were no longer f irm . Was it arbitrary or capricious for BOP to have treated [***]' and [***]'s offers as s u f f ic ie n tly definite to show their intent to be bound by BOP's acceptance despite the e x p ir a tio n of firm offers? T h e Solicitation stated that "[a] written notice of award or acceptance of an offer, m a ile d or otherwise furnished to the successful offeror within the time for acceptance s p e c if ie d in the offer, shall result in a binding contract without further action of either p a rty." AR 176. However, the "time for acceptance" is not specified in the Solicitation, o r elsewhere in the AR. Moreover, [***] required the CO to [***]. AR 60. The CO c o u ld reasonably be expected to use the Final Proposal Revisions to confirm prices with th e offerors included in the competitive range.9 Even after the award has been made, a m b ig u ity about the price "will prevent the formation of a contract only if it is significant e n o u g h to prevent a meeting of the minds." NVT Techs. Inc., 73 Fed. Cl. at 464 (finding th a t both parties understood plaintiff's proposal to be a final proposal notwithstanding the w aterm ark "DRAFT" that appeared on one of two submitted forms). E v e n if it were the court's view that it would have been better practice for BOP to c o n f irm the prices of the offerors prior to making its competitive range determination, a f a ilu re to follow a practice the court finds preferable does not make an action arbitrary or irra tio n a l. See generally E.W. Bliss, 77 F.3d at 449. Given the short amount of time that h a d lapsed between the Solicitation and determination of the competitive range, the f a m ilia rity of MDI, [***] and [***] with the government procurement process and the re q u ire m e n t that parties in the competitive range submit a Final Proposal Revision, the CO w a s reasonable in his determination that the offers were sufficiently definite to be included in the competitive range. Absent a finding that BOP's action was arbitrary, capricious or la c k in g a rational basis, there was no error and there can be no prejudice to plaintiff. 2. R ea s o n a b le n e s s of offerors' prices: [***] and MDI

The government may use a variety of techniques to ensure a fair and reasonable p ric e . 48 CFR § 15.404-1(b)(2) (2006). "Normally, competition establishes price
9

In reaching its legal conclusion, the court notes, but does not rely on, the observation that in the 2009 economic climate, it is beyond improbable that a competitor selected for the competitive range would take the opportunity presented by a final proposal revision to raise its prices. 15

re a so n a b len e ss . Therefore, when contracting on a firm-fixed-price or fixed-price with e c o n o m ic price adjustment basis, comparison of the proposed prices will usually satisfy th e requirement to perform a price analysis, and a cost analysis need not be performed." 48 CFR § 15.305(a)(1) (2006). The evaluation provisions state: T h e contracting officer is responsible for evaluating the reasonableness of th e offered prices. The analytical techniques and procedures described in th is section may be used singly or in combination with others, to ensure that th e final price is fair and reasonable. .... T h e Government may use various price analysis techniques and procedures to ensure a fair and reasonable price. Examples of such techniques include, b u t are not limited to, the following: (i) Comparison of proposed prices re c eiv e d in response of solicitation. Normally, adequate price competition e s ta b l is h e s price reasonableness. 4 8 C.F.R. 15.404-1(a)(1), (b)(2) (2006) (citation omitted). The Solicitation required that all prices be submitted in terms of a discount from or a premium to the Medicare rate for that service. AR 7, 130. The Medicare rate is an o b je c tiv e standard against which the contracting officer can compare prices and can d e te rm in e reasonableness.1 0 The CO was able to compare prices of the offerors to the M e d i c a re baseline and to each other. See AR 797-805. This comparison of the offerors' p ric e s to each other, without more, would be sufficient to establish the reasonableness of th e offered prices under the FAR. See 48 C.F.R. 15.404-1(b)(2). Offerors were directed b y the Solicitation to list all prices in terms of the premium to or discount from the M e d ic a re reimbursement rate for the service. AR 7, 138. Variations of the offerors from th e established Medicare rate therefore served as an additional way for the CO to d e te rm in e the reasonableness of the prices. AR 138, 171, 797-805.

The AR also contains an [***] with [***] for the comprehensive medical services needed at the Federal Correctional Complex in Coleman, Florida (FCC Coleman). AR 8-16. There is no record of comparison between or among the offeror's prices and the [***]. However there is no requirement that the Contracting Officer (CO) document his use of [***]. In this case, the CO may or may not have used [***]. However, comparison of offerors' prices to each other and to the Medicare base price were more than sufficient to establish the reasonableness of the prices. 16

10

M D I asserts that the determination by the government that MDI's prices were [ * * * ]" was irrational. Pl.'s Mot. 16-17. Its principal basis for the assertion is that, once p r ic e s were no longer firm, there was no objective standard upon which the CO could base s u c h a determination, id. at 17, and that without firm prices to serve as an objective sta n d a rd , MDI asserts, any conclusions were necessarily arbitrary and capricious. Id. This a rg u m e n t has been found unavailing by the court. See supra Part III.A.1.a. [ * * * ] the maximum number of points available in each pricing category will be a llo tte d to the offeror proposing the lowest price. Each higher price thereafter will be aw ard ed a proportionate number of points [***]. AR 7. The Solicitation directed offerors to "adhere strictly to the pricing methodology required by the solicitation." AR 171. Each o f f ero r was therefore required to submit its price proposal broken down by cost for each ca tego ry as the price related to the Medicare benchmark.1 1 AR 7, 138. Offerors were

The price proposal was scored out of a possible [***] points, allocated among eight different sub-categories, broken down by the cost for each year of the contract. AR 7, 798-99. Each subfactor was assigned a certain number of points based on its importance. AR 7. Impatient Facility Services pricing was worth a total of [***] points, [***] points for each contract year. Id. Outpatient Institution Services (Other Physicians) pricing was worth a total of [ * * * ] points, [***] points for each contract year. Id. Outpatient Facility Services pricing was worth a total of [***] points , [***] points for each contract year. Id. Inpatient Physician Services pricing was worth a total of [***] points, [***] points for each contract year. Id. Outpatient Physician Services pricing was worth a total of [***] points, [***] points for each contract year. Id. Outpatient Institution Services (Optometrist) pricing was worth a total of [ * * * ] points, [***] points for each contract year. Id. Outpatient Institution Services (Oral Surgeon) pricing was worth a total of [***] points, [***] points for each contract year. Id. Outpatient Institution Services (Dietician) pricing was worth a total of [***] point, [***] points for each contract year. Id. [***] Id. [***]. AR 797-805. The Solicitation sought bids for a five-year contract, a base year and four option years. AR 139, 162. [***] broke down the maximum number of price points to be awarded in each of the eight required categories [***]. AR 7. The government calculated the "[***]" correctly for the first five categories: Inpatient Facility Service, Outpatient Institution Services (Other Physicians), Outpatient Facility Services, Inpatient Physician Service and Outpatient Physician Services. Id. These five categories are collectively worth [***] out of a total of [***] possible price points. Id. The government incorrectly calculated the "[***]" in the remaining three categories: Outpatient Institution Services (Optometrist), Outpatient Institution Services (Oral Surgeon) and Outpatient Institution Services (Dietician). Id. In these three categories, the government divided 17

11

d ire c te d not to deviate from the outlined pricing methodology.1 2 See AR 171. An offeror

the number of total points by [***] instead of by [***]. See AR 7. Outpatient Institution Services (Optometrist) pricing was worth a total of [***] points and should have been worth [ * * * ] points per contract year. Instead it was listed, and calculated, as [***] points per contract year. AR 7, 800-05. Outpatient Institution Services (Oral Surgeon) pricing was worth a total of [ * * * ] points and should have been worth [***] points per contract year. Instead, it was listed, and calculated, as [***] points per contract year. AR 7, 800-05. Outpatient Institution Services (Dietician) pricing was worth a total of [***] point and should have been worth [***] points per contract year. Instead, it was listed, and calculated, as [***] points per contract year. AR 7, 800-05. The government used the "[***]" figure to calculate the [***] and therefore this mistake affected both the [***], see AR 7, and the calculations by the government, see AR 800-05. The government consistently, albeit incorrectly, used the "[***]" numbers from the [***] to calculate the score for each price proposal. AR 800-805. Consequently, every offeror was affected by this mistake. See id. This mistake was apparent on the [***], AR 7, and neither party brought the mistake to the court's attention. Given the relatively low weight of these three categories, the uniform application of the incorrect weighting to every offeror's price proposal, the inclusion of the mistake [***], and the failure of any party to raise this issue in its briefs or during oral argument, the court will not attempt to correct this mistake at this time. MDI asserts that [***]' prices were unreasonably low, and that the Bureau of Prisons (BOP) acted irrationally when it accepted [***]' prices. Pl.'s Mot.34-35. MDI proposes a statistical analysis that, it asserts, demonstrates that [***]' prices are unreasonably low and should have been discarded. Id. at 34-36. This statistical analysis is not required by the Solicitation, and would in fact be inappropriate under the terms of the Solicitation that limits comparison to Medicare baseline prices and to other offerors' prices. The court is unpersuaded that the statistical exercise advocated by MDI is necessary or appropriate, and instead considers how the evaluation of prices was in fact conducted by BOP. MDI further asserts that its [***] in previous contracts. Pl.'s Mot. 18. MDI included [ * * * ]. AR 628-29. MDI's claim [***]. AR 628-29; Pl.'s Mot. 18. MDI asserts that BOP should have taken [***] into account in making the competitive range determination and that BOP failed to do so. Pl.'s Mot. 18. This criticism ignores the terms of the Solicitation. The Solicitation explicitly limits price consideration to discounts from or premiums to Medicare reimbursement prices. AR 7, 138. [***]the CO shall ensure that proposals are evaluated based solely on the evaluation criteria contained in the solicitation [***]. AR 2. It would have been inappropriate under the Solicitation for BOP to taken [***]. MDI did not, as it might have, protest the terms of the Solicitation. Because the Solicitation expressly limited price consideration, it was appropriate for the CO to disregard [***]. AR 7. Even if it were viewed as proper for BOP to consider [***], which, given the terms of the Solicitation, it is not, the 18
12

w h o deviated from the pricing methodology would receive a score of zero for that item. AR 171. The purpose of these restrictions was to permit [***]comparison of their price w ith the competing prices.[***] AR 7. If such [***] comparison [***] could not be made, th e offeror received a score of zero.1 3 AR 7, 171. T h e information contained within the AR sufficiently demonstrates that the CO did n o t act arbitrarily or abuse his discretion in making his determinations concerning pricing. The FAR lists price comparison, the method used by the CO, as a preferred method of p r ic e evaluation. 48 § CFR 15.404-1(b). Comparison among and between the offerors' p ric e s is sufficient to determine the reasonableness of the offerors' prices. See id. F u rth e r, the CO is presumed to have the necessary background and is presumed to e x e rc is e his duty with care. Savantage, 86 Fed. Cl. at 703-04. While there is no in f o rm a tio n in the AR concerning the CO's specific experience or resume, there is no re q u ire m e n t that such information be included in the AR. The lack of information in the A R regarding the CO's specific experience is not sufficient to overcome the presumption o f care and competency. See id. The comparison of the offerors' prices to each other and to Medicare prices coupled with the presumption that the CO fulfilled his duty with a p p ro p ria te care and based on appropriate expertise, see id., is sufficient to support the C O 's characterization of MDI's prices as [***] and [***]' prices as [***]. The court finds the actions of the CO had a rational basis. Because MDI has not proved that BOP's d e ter m in a tio n was "arbitrary, capricious, an abuse of discretion, or otherwise not in a c co rd a n c e with the law," 5 U.S.C. § 706(2)(A), MDI cannot establish that it suffered any p re ju d icia l effect.

competitive offers contained [***]. The proposals of [***] and [***] both address the need to [ * * * ] in order to [***]. AR 440-41, 523-24. The Solicitation made clear that prices would be evaluated using Medicare rates as an objective benchmark. AR 7. MDI's assertions related to statistical analysis and [***] are inappropriate under the terms of the Solicitation. They were not and should not have been taken into account in making the competitive range determination. The [***] comparison [***] of prices among and between the offerors and to the Medicare baseline is apparent upon looking at the [***] in the AR. AR 797-805. The offerors' price for each contract year for each pricing category is written out in terms of the Medicare baseline, e.g., [***]. AR 798-99. Then the [***]. AR 800-05. The "[***]" is [***], which yields the "score" for each category. AR 800-05; see supra note 11. The [***] to get each offeror's overall price score. 19
13

B.

[ * * * ]'s Past Performance Rating

[***] received a [***] rating for its past performance. AR 810. MDI asserts that [ * * * ] should have received a [***] rating. Pl.'s Mot. 26-27. As described in Part I, the ra tin g guideline for past performance has two separate criteria: the evaluator must look at th e predominant numerical ratings the offeror received, and the evaluator must also c o n sid e r the percentage of references that would recommend the offeror for additional a w a rd s . AR 611. [***] percent of the responses ranked [***] as a [***] (out of 4), a s c o re that indicates that "[***]." AR 695-709. [***] percent of the responses ranked [ * * * ]'s past performance as a [***], a score that indicates that [***]." Id. The remaining [ * * * ] of the responses ranked [***]'s past performance as a [***], indicating "[***]." Id. All of the references indicated that they would recommend [***] for additional contracts. AR 612. T h e categories for past performance review direct the CO to score the offeror based o n the [***]. AR 611. [***]. See AR 695-709. The CO gave [***] a score of [***], e v e n though [***] had not "[***]" as was required [***] in order to receive a score of [ * * * ]. BOP argues that a score of [***] was appropriate because all of the references w o u ld recommend [***] for additional contracts. Def.'s Mot. 29. The [***] ratings for p a st performance are based on an offeror's having both the required predominant numeric ra tin g and the required percentage of references that would recommend the offeror for a d d itio n a l contracts. Here, [***] did not receive a [***] rating of [***]. Of course, [***] did not receive a [***] rating of [***]3, either, making [***]'s past performance, viewed in the strictest in te rp re ta tio n of the terms of the Solicitation, not deserving of a [***], either. In the c irc u m sta n c e s, BOP broke the "tie" by looking to the percentage of references that would re c o m m en d [***] for additional contracts. Given the limitation of the [***] rating system, this decision does not appear to the court to be irrational. The court finds that the CO's d e te rm in a tio n that [***]'s past performance was deserving of a [***] rating was neither a rb itra ry nor capricious. Because MDI has not proved that BOP's determination was " a rb itr a ry, capricious, an abuse of discretion, or otherwise not in accordance with the law," 5 U.S.C. § 706(2)(A), MDI cannot establish that it suffered any prejudicial effect. C. 1. E v a lu a tio n of [***]'s and [***]' Technical Proposals T h e Process

T h e technical proposal of each offeror was evaluated by three panel members, and th e n , after [***], given a [***]. AR 58-60. Each evaluator [***]. AR 58. A rating of 20

[ * * * ] indicated a proposal had [***].1 4 Id. [***] did not indicate that a proposal was [ * * * ]. Id. [***] proposals were rated [***].1 5 Id. A rating of [***] indicated that the p ro p o s a l was [***]. Id. T h e evaluation procedure allowed each evaluator to [***]. Id. The [***] was made b y [***], after [***]. Id. [***] AR 59. The process allowed each evaluator to [***]. Id. Panel member [***] disagreed with the [***] for [***] and with the [***]. AR 42. MDI supports its argument that [***] was rated incorrectly by pointing to an email from [* * * ] to [***] in which [***] states "that [***] was not technically acceptable . . . ." Pl.'s M o t. 31; see AR 42. This email was apparently sent in reply to an email by [***], the tec h n ica l evaluation chairperson, stating that the CO was considering making the award to [ * * * ] with no further discussions. AR 43. [***] was the only evaluator who [***]. AR 4 2 . Even after he [***] agreed, after a short email exchange with [***], that if [***] had c o n tra c ts in place it would be technically acceptable. Id. Notably, whether or not the o f f ero r had contracts in place is not one of the four sub-factors to be considered in the te c h n ic a l evaluation. See AR 4. The chairperson was directed to [***]. AR 57-61. The technical performance e v a lu a tio n is meant to be [***]. Id. The opportunity for each evaluator to [***]. Id. [***] appears to have disagreed with the other panelists, but the court does not view a d is a g re e m e n t as a fact undermining [***] particularly where, as here, the disagreement a p p e ars to be based on a criticism of a perceived deficiency in a technical matter that was n o t included in the evaluation criteria.1 6 See AR 56, 58. However desirable it may be for [ * * * ], [***]'s disagreement with the [***] does not make the rating irrational or arbitrary. 2. [ * * * ]' Technical Rating

[ * * * ]' technical proposal received [***]. AR 771-76. Plaintiff asserts that [***] s h o u ld have received a [***] rather than a [***]. Pl.'s Mot. 30-32. On May 19, 2009, the

14

A [***] rating "[***]." AR 4. A [***] rating "[***]." AR 4.

15

The [***]did not eliminate the [***] from the record. In making the competitive range determination, the CO had access to the [***]as well as the [***]. AR 57-61. The record of the technical evaluation also contains comments made after [***] made [***]. [***]wrote on May 21 that "[***] was not technically acceptable, [because] they did not have agreements with the hospitals or providers." AR 42. 21

16

C O emailed [***] to alert [***] to the possibility that he might make the award to [***] w ith o u t discussions. AR 43. [***] emailed all the evaluators on May 20, 2009, to confirm th a t [***] was technically acceptable. AR 43. [***] responded that he found [***] to be " n o t technically acceptable [because it] did not have agreements with the hospitals or p ro v id e rs." AR 42. In response, [***] points out that "MDI did not have agreements in p la c e when they bid 5 years ago" but has provided good service during the life of the c o n tra c t. Id. [***] wrote back, agreeing that if [***] is able to provide service without in te rru p tio n , it could be acceptable. Id. T h e Solicitation required technical proposals be judged on four criteria. AR 4. Whether the offeror had contracts in place at the time it submitted its bid was not one of th e criteria. See id. Even if [***] did not have contracts in place when it submitted its o f f er, that was not a criteria on which the technical proposal should have been evaluated a n d is not a reason to find the CO's decision arbitrary. [ * * * ] was one of the two evaluators who rated [***]' technical proposal as [***]. [***]'s objections to [***]' proposal centered on a concern that was not properly before th e Technical Evaluation Panel under the terms of the Solicitation. [***], the other e v a lu a to r who rated [***], made no comments about the state of its contracts. AR 778. Most of [***]'s comments were positive regarding [***]' technical proposal. [***]'s c o m m e n t section states that the proposal provides an "[e]xcellent variety of community h o s p ita ls ." Id. [***] also noted that the "proposed hospitals will meet the complex needs f o r inpatient services." Id. [***] noted that [***] included [***], the closest community h o s p ita l to FCC Coleman. Id. T h e third evaluator, [***], rated [***]' technical proposal [***]. AR 779. Based o n the [***], assigned [***]' technical proposal a score of [***]. AR 776. MDI asserts that because [***] received [***], its [***] should have been [***] ra th e r than [***]. However, BOP used a [***]. AR 4. MDI provides no substantive s u p p o rt for its allegation that [***] was scored incorrectly under the terms of the S o lic ita tio n . Moreover, [***] reflects a concern with a matter that should not have been c o n sid e re d under the technical evaluation criteria. The [***]of the technical proposal was b a se d on [***]. AR 4. The court cannot find that BOP acted irrationally or arbitrarily w h e n it gave [***] a [***] rating for its technical proposal. Because MDI has not proved th a t BOP's determination was "arbitrary, capricious, an abuse of discretion, or otherwise n o t in accordance with the law," 5 U.S.C. § 706(2)(A), MDI cannot establish that it s u f f e re d any prejudicial effect. 3. [ * * * ]'s Technical Rating 22

[ * * * ] received a score of [***] for its technical proposal, based on three individual s c o re s of [***] and [***]. AR 780-88. Plaintiff asserts that [***] should have received a [* * * ] rating rather than a [***] rating. Pl.'s Mot. 28-30. [***] included [***] health care fa cilities as part of its technical proposal. [***] of these health care facilities were a c c re d ited by the Joint Commission. AR 783. The [***] health care facility listed in [* * * ]'s technical proposal was accredited by the Florida Agency for Health Care A d m in is tra tio n , Division of Health Quality Assurance (Florida Agency for Health Care). AR 489. [***] of the health care facilities accredited by the Joint Commission include [ * * * ] and [***] hospitals. [***] hospital is [***] miles away from FCC Coleman and [ * * * ] hospital is [***] miles away from FCC Coleman. AR 788. The distance of the hospitals from the prison was one of the factors the evaluators w ere to consider in making the evaluation. AR 4. One of the panel members, [***], v ie w e d the distances from FCC Coleman to [***] hospitals as a weakness based on the v ie w that the distance limited the benefit these hospitals could provide to FCC Coleman. AR 787. MDI asserts that the inclusion of [***] hospitals should have negatively affected [ * * * ]'s score more than the [***] indicates it did. Pl.'s Mot. 28-30. However, [***] was th e only evaluator who expressed the view that the distance of these [***] hospitals may n e g a tiv e l y impact their usefulness. See AR 786, 788. Furthermore, MDI's proposals A a n d B included [***] hospitals and both received a score of [***] for their technical p ro p o s a ls , the same rating that [***] received. AR 749, 758, 785. MDI also states that [***]'s proposal included "[***] accredited hospital." Pl.'s M o t. 29. This assertion is simply wrong. In order to arrive at this characterization, MDI f irs t eliminates [***] hospitals from [***]'s proposal because of their distance from FCC C o le m a n . Id. at 28. MDI then eliminates a [***] hospital saying that it "did not have p ro o f of accreditation." Id. at 29. This is incorrect. The [***], the hospital MDI claims is u n ac cre d ite d , is in fact accredited by the Florida Agency for Health Care as an Ambulatory S u rgica l Center. AR 489. It is not accredited by the Joint Commission, a factor evaluators w e re directed to consider in their ratings. AR 4, 780-88. In fact, all [***] of the health c a re facilities [***] includes in its technical proposal are accredited: [***] of the [***] h e a lth care facilities proposed by [***] are accredited by the Joint Commission, AR 4858 7 , and the [***] hospital is accredited by the Florida Agency for Health Care, AR 489. Moreover, the Solicitation expressly permits offerors to submit bids that include h e a lth care facilities that are accredited by bodies other than the Joint Commission. AR 1 3 4 . As directed by the Solicitation, [***] provided proof of accreditation for all [***] h e a lth care facilities that it used in its proposal. AR 485-89. Both the distance and a c cre d ita tio n of the health care facilities was discussed by the members of the technical e v a lu a tio n panel and considered by the CO. 23

T h e court cannot find that BOP acted irrationally or arbitrarily when it gave [***] a [***] rating for its technical proposal. Because MDI has not proved that BOP's d e ter m in a tio n was "arbitrary, capricious, an abuse of discretion, or otherwise not in a c co rd a n c e with the law," 5 U.S.C. § 706(2)(A), MDI cannot establish that it suffered any p re ju d icia l effect. D. B alan cin g of Price and Non-Price Factors

M D I asserts that BOP balanced price and non-price factors improperly when the C O determined the competitive range. Pl.'s Mot. 20-25. MDI-C was the only proposal to re c e iv e a [***] rating for its technical proposal. Id. at 22; see AR 763-70. MDI asserts th a t [***] was improperly scored as [***] for its past performance, and that [***] should h a v e been rated [***]. MDI also asserts that if [***]'s past performance is changed to ref lect the score of [***] which MDI contends that [***] should have received, then MDIC would have r