YOUR RECRUITING COMPANY, INC v. USA

Filing 56

PUBLISHED OPINION. The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. (sr) Copy to parties.

In the United States Court of Federal Claims
No. 12-509C
(Originally Filed: October 12, 2012)
(Reissued: October 22, 2012)1
**********************
YOUR RECRUITING COMPANY, INC.,
Plaintiff,
v.
THE UNITED STATES,

Bid Protest; Procurement
Integrity Act; Alleged
Plagiarism; De Novo
Review.

Defendant,
and
GOLDEN KEY GROUP LLC,
Intervenor.
**********************

Rebecca E. Pearson, Washington, DC, for plaintiff.
Joshua A. Mandlebaum and Won K. Lee, United States Department of
Justice, with whom were Deborah A. Bynum, Assistant Director, Jeanne E.
Davidson, Director, and Stuart F. Delery, Assistant Attorney General.
Anthony H. Anikeef, McLean, Virginia, for intervenor.
OPINION
BRUGGINK, Judge.

1

Publication was deferred pending the parties’ review for redaction of
protected materials. Those redactions are indicated by brackets.

This is a post-award bid protest. Your Recruiting Company, Inc.
(“YRC” or “plaintiff”) challenges the award by the National Science
Foundation (“NSF”) of a task order to intervenor, Golden Key Group LLC
(“Golden Key”). Currently before the court are plaintiff’s motion to amend its
complaint and motion for judgment on the administrative record, defendant’s
cross-motion for judgment on the administrative record and motion to strike
documents attached to plaintiff’s motion for judgment on the administrative
record, and intervenor’s motion to supplement the administrative record. The
motions are fully briefed, and we heard oral argument on October 4, 2012. As
we announced at oral argument and for the reasons explained below, we deny
plaintiff’s motions to amend and for judgment on the administrative record; we
grant defendant’s motion for judgment on the administrative record; we grant
in part and deny in part defendant’s motion to strike; and we grant intervenor’s
motion to supplement the administrative record.
BACKGROUND 2
On December 17, 2011 NSF issued Request for Quotations No.
DACS11Q2151 in connection with the possibility of award of a firm fixedprice task order pursuant to the General Services Administration (“GSA”)
Federal Supply Schedule 738x for Human Resources Services. The award
would be to provide support to NSF’s Human Resources Management
Services (“HRM”) division for a base period of one year, with four additional
option years. The work would consist of technical, operational, and
administrative support in the areas of recruitment, position management,
payroll processes, and other functions.
Plaintiff and intervenor each submitted a proposal to NSF for this task
order, as did a number of other bidders. Although YRC and Golden Key had
teamed together on a prior proposal, they submitted bids separately for the
NSF proposal. The substance of YRC’s argument here is that content within
Golden Key’s proposal was taken without permission from YRC and that this
material was relied on by NSF in making the award to Golden Key. YRC’s
theory can be summed up in a statement from its motion for judgment on the
administrative record: “by cribbing information from a proposal on which

2

The facts are drawn from the Administrative Record (“AR”).
2

YRC[] and [Golden Key] had teamed, whether unknowingly or intentionally,
[Golden Key] made a false statement.” Pl.’s Brief 28.3
The information at issue came into Golden Key’s possession during its
teamwork with YRC on a prior joint proposal to GSA. In order to facilitate
joint work on that bid, YRC and Golden Key exchanged information subject
to a Nondisclosure Agreement (“NDA”), executed in February 2011. That
agreement contained the following provision with respect to proprietary
information:
All written proprietary information disclosed to the other
party shall be marked with the legend “Proprietary
Information[.]” Proprietary verbal or visual information shall be
promptly confirmed in writing as Proprietary Information. In
addition to information marked or confirmed as “Proprietary
Information,” both parties agree[] that “Proprietary Information”
shall also include all data or other information disclosed to the
other that a party could reasonably expect to be protected as
confidential.
AR 1653. Proprietary information of the other party was to be used only in
connection with the GSA proposal. AR 1653-54.
The parties designated representatives to work on the proposal, and
those individuals met in person and communicated by email. Lauren Wingate,
a deputy director for YRC, was the only person authorized under the NDA to
send proprietary information on behalf of YRC to Golden Key. AR 1733.
However, on March 1, 2011 she notified Barry Prokop of Golden Key that
Joshua Tingle, a YRC employee, would be sending information in connection
with developing the proposal. AR 1733-34. Tingle had worked for Golden
Key in the past, but had recently moved to YRC in January of 2011. AR 1233,
1734.
As the due date approached for the proposal, Tingle and McCracken
met with a Golden Key employee in Denver in order to collaborate on the
proposal and to be near the GSA building at which the bid would be delivered.
AR 1424. During those meetings, Tingle emailed an attachment entitled
3

“Pl’s. Br.” refers to Plaintiff's Brief in Support of Motion for Judgment
on the Administrative Record.
3

“Staffing Plan Docs YRCI.docx” (“Staffing Plan”) to McCracken. AR 1424,
1434. The following text and chart were included in the Staffing Plan
attachment sent by Tingle, and are claimed by YRC to be proprietary to it:
Approach to Staffing up as needed: YRCI has more than [
]
recruiters specializing in recruiting Senior Acquisition Specialists,
Senior Management Analysts, Senior Financial/Cost Analysts and
other service professionals as their sole responsibility. Our candidate
database consists of [
] industry personnel resumes; containing
candidates geographically dispersed with nearly [ ] in the National
Capitol region.
Our staffing policies and procedures are founded on the following
points:

[redacted]

AR 1082.
Tingle sent other documents in addition to the Staffing Plan. None of
the attachments were designated “Proprietary Information” pursuant to the
NDA. AR 1427, 1657. The covering emails did, however, bear the standard
warning: “This message is for the designated recipient only and may contain
privileged, proprietary, or otherwise private information. If you have received
it in error, please notify the sender immediately and delete the original email.
Any other use of this email by you is prohibited.” AR 1237.

4

The team submitted the joint proposal to GSA on April 8, 2011. It
contained the same principles and chart from the Staffing Plan shown above,
with minor changes to the team and recruiters that were used:
Approach to Staffing up as needed: The GKG Team has more
than [
] recruiters specializing in recruiting Administrative
Staff, Acquisitions, Senior Contracts Management Staff, Human
Resources Managers, Program/Project Managers and other
service professionals as their sole responsibility. Our teams [sic]
candidate database consists of [ ] industry personnel resumes;
containing candidates geographically dispersed with nearly
2,000 candidates located in Region 8.
AR 1400. The bid was unsuccessful. AR 1424.
Tingle did not stay long at YRC and was re-employed by Golden Key
on June 23, 2011. AR 1426. The two companies partnered on more projects
after that date, but prior to the conflict which arose between them in
connection with the NSF proposal.
NSF issued its solicitation at issue here on December 17, 2011. At the
time NSF employed nearly 1,700 employees for its mission of “support for all
fields of fundamental science and engineering, except for medical science.”
AR 100. Much of the agency’s mission involves evaluating and funding
awards for federal research programs. AR 100. The HRM division of NSF
administers the agency’s personnel. AR 101. In broad terms, the solicitation’s
Statement of Work (“SOW”) contemplated that the successful contractor
would support HRM. This support would be “primarily operational in nature,
much of which is transactional and behind the scenes.” AR 102. There are
nine functional areas covered in the SOW, including support for recruiting and
staffing, position classification, and payroll administration. AR 103.
The analysis of each proposal was to be made on a best-value basis
using procedures set out in Federal Acquisition Regulation (“FAR”) 8.405-2
(2005). AR 72. There were four evaluation factors. The three non-price
factors were, in descending order of importance, management plan, key
personnel, and past performance. In combination, these three factors were
significantly more important than price. AR 97.

5

The solicitation called on NSF to rate each factor on a scale ranging
from ‘poor’ to ‘excellent.’ For the management plan, an excellent reflected a
“comprehensive and thorough response of exceptional merit with one or more
significant strengths. No deficiencies or significant weaknesses exist.” AR
420. A very good plan showed “no deficiencies and demonstrates overall
competence. One or more significant strengths have been found, and strengths
outbalance any significant weaknesses that exist.” AR 420.
NSF received and evaluated seven proposals, including those of Golden
Key and YRC. It is uncontested that at least a portion of the information
originating with YRC appeared on page 11 of Golden Key’s 92-page proposal.
AR. 133-211, 212-29, 1434. This page was in a section entitled “2.1 Sample
Roster Plan” of part two of the proposal, which was entitled “Work Organized and Managed.” AR 142, 145. Section 2.1 is over two pages long,
and the disputed content takes up half of one of those pages:
Approach to Staffing up as needed
The GKG Team currently has more than [
] recruiters
specializing in recruiting Human Resources Staff,
Administrative Staff, Program/Project Managers and other
service professionals as their sole responsibility. The GKG
Team’s HR candidate database consists of [
] industry
personnel resumes.
Our recruiting policies and procedures are founded on the
following principals [sic]:
Selection of the best available talent; complete visibility and
transparency for the candidate, the company and the customer;
ability to effectively manage employees regardless of their
physical location; assignment of fully vetted candidate/employee
to ensure immediate fulfillment of the project mission, staff
cross-training, education, technical training, and mentoring to
assure continuity and redundancy of skills and superior benefits
and competitive compensation package to ensure retention.

6

[redacted]

AR 146. As is apparent, these paragraphs and the numbers within them are
virtually identical to the information Tingle sent to his Golden Key counterpart
while he was working for YRC. The bullet points in the original are simply
replaced by semi-colons. It is important to note that Golden Key used these
paragraphs as part of its description of how it maintains its own staff, not how
it proposes to help NSF locate and hire its employees.
After evaluation, Golden Key received a ‘very good’ rating for its
management plan and a ‘very good’ rating overall. Two significant strengths
were assigned: an ability to provide [
] and an experience with [
]. AR
435. Other strengths assigned to Golden Key’s management plan were listed
in eight bullet points. Evaluators found, for example, that the plan offered a
good overview of [
], a process to “[
] (p10-12),” and a sound “[
]
strategy (p11).” AR 435-36. The parenthetical page references were to Golden
Key’s proposal. Those references include page 11, which has within it the
same material that was sent by Tingle to Golden Key during joint work on the
GSA proposal and which YRC claims as proprietary. Golden Key’s plan
received no significant weaknesses, other weaknesses, or deficiencies. AR
436.
YRC’s proposal received an ‘excellent’ rating for its management plan
and an ‘excellent’ rating overall. Included within its six significant strengths
were its [
] and [
]. AR 433. Six bullet points noted other YRC
strengths, including a plan for how to [
]. The management plan received
no significant weaknesses, other weaknesses, or deficiencies. AR 434.
Five other contractors submitted proposals and were rated. AR 477.
For the base year of the task order, Golden Key submitted a price of [ ]. AR
474. Its aggregate quote, including option years, was $15,612,076.25. YRC’s
base year price was [ ], with an aggregate of [ ]. AR 474. All of the bids
were less than the Independent Government Estimate (“IGE”) of [ ] for the
7

base year and [

] for the aggregate. AR 473.

The procuring contracting officer, Gregory N. Smith, also served as the
source selection authority. On April 19, 2012 in his Source Selection
Decision, he weighed the award criteria against the evaluation results and the
prices, and concluded that Golden Key provided “the best value.” AR 483.
Mr. Smith acknowledged that YRC had the best technical proposal, but its
price was the second highest and [ ] more than Golden Key’s proposal. AR
484. Golden Key’s proposal, although not as highly rated, was ‘very good,’
in part because of Golden Key’s ability to [
] and its “[
].” AR 484. It
had no weaknesses. In sum, YRC’s “slight technical superiority” failed to
“overcome the large price advantage” provided by Golden Key. AR 484. Mr.
Smith awarded Golden Key the contract on April 19, 2012, and work was to
begin May 1, 2012. AR 528.
On April 20, 2012 YRC’s Vice President of Contracts and Pricing
requested a debriefing so that YRC could understand how NSF made its best
value determination. AR 965. After this debriefing, YRC filed a protest on
April 30, 2012 with the Government Accountability Office (“GAO”). AR
730. A few days later YRC submitted a letter to NSF regarding a “Notice of
Possible Procurement Integrity Violation.” AR 1069. While the GAO review
process was underway, (the decision was later issued on July 31, 2012), NSF
investigated YRC’s allegations that Golden Key violated FAR 3.104-3(b), and
the Federal Procurement Policy Act, 41 U.S.C. § 423 (2006), amended by 41
U.S.C. § 2101-2107 (Supp. V 2011), (the “Procurement Integrity Act” or
“PIA”).4
YRC’s allegations were based on Tingle’s transfer of the Staffing Plan
to Golden Key during preparation of the GSA proposal, and its later inclusion
in Golden Key’s NSF proposal. YRC alleged that the information was
proprietary, that Golden Key knew it was receiving proprietary information,
and that Golden Key used the information to represent itself falsely, because
NSF would be under the impression that the language originated with Golden
4

FAR 3.104-3(b) forbids “knowingly obtain[ing] contractor bid or
proposal information or source selection information before the award of a federal
agency procurement contract to which the information relates.” FAR 3.104-1
defines “proposal information,” as “[i]nformation marked by the contractor as
‘contractor bid or proposal information’ in accordance with applicable law or
regulation.”
8

Key. AR 1223-27.
The contracting officer notified Golden Key of YRC’s claims and gave
it an opportunity to respond, which Golden Key did on May 17, 2012. AR
1656-57. In her response, CEO Gretchen McCracken asserted that the
disputed information was sent by Tingle when he was a YRC employee and
authorized to send the content; that, although some of the material ended up
in the NSF proposal, it was merely boiler-plate; that it accurately described
Golden Key’s model and intent; and that nothing on the documents received
from YRC was marked as proprietary. She specifically wrote:
The information is . . . generic, high-level information that can
be found in the public domain and that generally describes
Golden Key Group’s pre-existing processes, as well as the
processes of the industry as a whole. Indeed, Golden Key
Group has long had a robust system and processes for
identifying and retaining personnel and for program
management, which we articulated at a much more granular and
detailed level in both our NSF proposal and prior proposals.
Further, the information was not provided to Golden Key Group
with any markings or in a way that would cause Golden Key
Group to think that this universally accepted information was
considered proprietary by YRCI.
AR 1420.
In its complaint here, YRC contends that it did not receive an
opportunity to reply to the Golden Key response, but there is no assertion that
failing to do so violated any requirement of law, or that YRC even requested
such an opportunity. In any event, we note that YRC made two lengthy written
submissions to the contracting officer, and that there was a discussion between
YRC counsel and the agency concerning YRC’s allegations. AR 1655.
After investigating the allegations, the contracting officer issued a final
decision concluding that insufficient evidence existed to show a PIA violation.
AR 1657-58. He found that the emails sent to Golden Key by Ms. Wingate on
February 28, 2011 and March 1, 2011 gave Tingle permission to share YRC’s
material with Golden Key. AR 1658. Furthermore, the attachments to

9

Tingle’s emails had no proprietary markings. AR 1657.5 He therefore rejected
the allegation of a PIA violation, concluding that there was “insufficient
information to show misconduct on the part of Golden Key.” AR 1657-58.
What remained of YRC’s assertion to the agency was that Golden Key
had plagiarized from YRC’s material. AR 1658. The contracting officer
dismissed this concern, pointing out that the very limited portion of page 11
which could be traced to YRC’s Staffing Plan or the GSA proposal was not the
basis for the strong ratings assigned to Golden Key. The ‘very good’ rating for
the management plan was not “significantly impacted” by the disputed content.
The significant strengths did not cite page 11, and the strengths that did were
supported by content other than the disputed information. AR 1658-59.
Moreover, as we noted above, the point at which the material was inserted into
Golden Key’s proposal related to Golden Key’s internal staffing, not what it
proposed to do directly on behalf of NSF.
On June 8, 2012, NSF filed a report in the still-pending GAO protest,
transmitting its rejection of YRC’s allegations and explaining its conclusions
that Golden Key had not engaged in any misconduct and that the source
selection decision had not been affected by the possible plagiarism. After
relying on a statement of facts provided by the contracting officer, the general
counsel of NSF reported that YRC “has provided no evidence to support its
allegations, has misrepresented or misinterpreted the facts, or is simply
disagreeing with NSF’s evaluation of its proposal.” AR 33.
In doing its evaluation, GAO characterized YRC’s claims as follows:
“plagiarism and industrial espionage”; material misrepresentation to NSF; lack
of qualifications of non-key personnel of Golden Key; and NSF’s alleged
violation of FAR 8.4 in not properly scrutinizing Golden Key’s “proposed
level of effort and labor mix” in the price analysis. AR 1826.
GAO issued its decision on July 31, 2012. AR 1824. It ruled that the
misrepresentation issue was a private dispute between YRC and Golden Key,
although in a footnote it stated that the agency had not, in any event, relied on
5

The contracting officer did not address the import of the statements
at the bottom of Tingle’s email to the effect that the email might contain
proprietary information, perhaps because the complaint letters that YRC
counsel sent to him made no argument on that basis. AR 1069-1074, 122021.
10

the disputed information. AR 1830 n.7. It also found that YRC’s challenge
to the merits of NSF’s evaluation was without merit because the agency did
not rely on descriptions of non-key personnel, and it found no fault with NSF’s
price analysis. AR 1831.
On August 10, 2012, YRC filed its complaint here. The focus of its
attack is the contracting officer’s procurement integrity decision, and not the
underlying source selection decision. YRC argues that Golden Key misled
NSF by falsely claiming YRC’s proprietary information as Golden Key’s, that
Golden Key violated FAR 52.203-13(b)(3)(i)(A) by not reporting that
misrepresentation, and that Golden Key engaged in a “bait and switch” by its
employment of YRC staff after it received the award. YRC seeks a permanent
injunction preventing Golden Key’s further performance on the contract and
directing NSF to award the contract to YRC or to reevaluate the proposals.
DISCUSSION
Standard of Review
This case is unique, in that there were two decisions by the agency here.
The first was the source selection decision by the contracting officer, made on
a best value basis, to award the task order to Golden Key. That decision can
only be overturned if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2006);
Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350-51 (Fed.
Cir. 2004). Although the complaint arguably contains a challenge to the
source selection decision, the sole focus of attack in the complaint and in
plaintiff’s initial merits brief is the contracting officer’s rejection of YRC’s
allegation that Golden Key engaged in a procurement integrity violation.
Bid protests are typically addressed through motions for judgment on
the administrative record, which are the equivalent of an expedited trial on a
“paper record, allowing fact-finding by the trial court.” Bannum v. United
States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). Questions of fact are resolved
by reference to the administrative record. Id. Our standard of review is the
same as that found in the Administrative Procedures Act. 28 U.S.C. §
1491(b)(4) (2006) (“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.”). Thus, we may hold unlawful and set aside any agency action found to be

11

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
Insofar as the source selection decision is concerned, there is no
question that this typical scope and standard of review apply. And, particularly
in respect to decisions made on a “best value” basis, the agency’s discretion
is entitled to heightened deference. See Banknote, 365 F.3d at 1355 (Fed. Cir.
2004) (stating that the agency is entitled to a “great deal of discretion . . .
particularly when, as here, the contract is to be awarded to the bidder or
bidders that will provide the agency with the best value”).
Plaintiff’s real challenge here, however, is to the subsequent
procurement integrity decision. YRC argues that a possible misrepresentation
entitles it to a different standard of review. It contends that the contracting
officer’s decision is entitled to no deference and argues, instead, that the court
should approach the issue on a de novo basis.
We disagree. Plaintiff seeks review of a final decision by the
contracting officer to make an award pursuant to 28 U.S.C. § 1491(b), albeit
in the face of procurement integrity challenge. In other cases in which an
agency investigated allegations of impropriety in connection with a
procurement, this court has reviewed the agency’s decision pursuant to the test
set out in section 706(2)(A). See, e.g., Chenega Mgmt., LLC. v. United States,
96 Fed. Cl. 556, 585 (2010) (reviewing with deference an Air Force
investigation and decision based of allegations of bribery of an Air Force
Colonel by a contractor); Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173,
192-93 (2006) (upholding decision not to disqualify a bid after allegations that
the company took proprietary information from a competitor and used it for an
advantage in the proposal). While plaintiff cites Blue & Gold Fleet, LP v.
United States, 70 Fed. Cl. 487, 495 (2006), aff'd, 492 F.3d 1308 (Fed. Cir.
2007), for the proposition that we should undertake a de novo review of the
misrepresentation allegation, we agree with defendant that Blue & Gold and
other similar cases are inapplicable because the agencies there did not have the
opportunity to investigate and resolve the allegations of misrepresentation. See
also GTA Containers, Inc. v. United States, 103 Fed. Cl. 471, 474-78 (2012).
Consequently, because the contracting officer here investigated the
impropriety and made a final decision, that decision cannot be overturned by
this court unless it was arbitrary, capricious, or not in accordance with law.

12

Procedural Motions
Intervenor seeks to supplement the administrative record with the
affidavits of Joshua Tingle and Gretchen McCracken. In his affidavit, Tingle
recites that he had limited involvement in the NSF proposal and did not “draft
or insert text” into the area of the proposal that YRC disputes. Int.’s Mot. to
Suppl., Ex. 2 ¶¶ 4-8.6 In her affidavit, McCracken says that the number of
recruiters offered by Golden Key in its proposal was correct and that the
number of resumes it should have shown as available to Golden Key was
actually higher than the number in its proposal. Int.’s Mot. to Suppl., Ex. 1 ¶
7. She also reaffirms what she included in her statement to the contracting
officer, that Golden Key continues to stand behind its proposal. Int’s Mot. to
Suppl., Ex. 1 ¶ 11. We take this to mean that, even though the numbers of
recruiters and resumes were taken out of the joint proposal to GSA, it happens
to be correct, or even conservative, in terms of Golden Key’s actual abilities.
The court requested these affidavits because of the unique assertions
made by YRC. If Golden Key refused to stand by its proposal because of the
allegedly plagiarized information, presumably the agency could not consider
its bid and the protest could be terminated quickly in plaintiff’s favor.
Similarly, if Tingle had drafted that portion of Golden Key’s proposal to NSF
in which the contested information was included, this would support YRC’s
claim of prejudice. Intervenor’s motion to supplement is therefore granted.
Defendant moves to strike five exhibits attached to YRC’s lead brief:
Exhibit Y, the Second Declaration of John Jaeger; Exhibit Z, the Declaration
of Laura Wingate; Exhibit AA, a 2011 slide presentation by NSF entitled
“Technology for Plagiarism Detection”; Exhibit BB, part of NSF’s 2010 report
to Congress on its internal Inspector General investigations; and Exhibit CC,
a redacted version of the same material Golden Key submitted to the
contracting officer in connection with his investigation into YRC’s allegations.
We strike all of Mr. Jaeger’s affidavit, except those assertions which would
have been relevant to asserting prejudice. Pl.’s Brief Ex. Y ¶¶ 21-32. The
balance of Mr. Jaeger’s declaration consists of descriptions of YRC’s
processes and competencies, assertions of misconduct by Golden Key, and
legal conclusions. These assertions are either irrelevant or should have been
made to the contracting officer. Ms. Wingate’s declaration is brief and makes
6

“Int.’s Mot. to Suppl.” refers to Golden Key Group LLC’s Motion
Seeking Leave to Supplement the Administrative Record.
13

one point: someone else told her that Joshua Tingle worked on the Golden Key
proposal to NSF. It is admitted as potential evidence to support Tingle’s
involvement in both proposals, but it cannot be considered because the
statement is clearly inadmissible hearsay.7 Exhibits AA and BB are irrelevant
and untimely. Exhibit CC is irrelevant and duplicative.
Finally, YRC seeks to amend its complaint to make clear that it wishes
to assert that NSF failed to follow the announced evaluation criteria. Arguably
such a contention is embraced within the legal claims made by the initial
complaint, although no facts are asserted in support. The sole focus of the
complaint is the procurement integrity decision. As we explain below,
however, even if we allowed the amendment, the new grounds asserted in
support are drawn exclusively from defendant’s briefing and do not provide
grounds for overturning the source selection decision. Accordingly, we deny
the motion to amend.
Motions for Judgment on the Administrative Record
Source Selection Decision
The complaint and plaintiff’s first round of briefing offered no basis for
challenging the source selection decision. In its proposed amended complaint,
however, plaintiff points to language in defendant’s briefing that the contested
language “was peripheral to the scope of work.” Def.’s Brief 20.8 Another
statement that plaintiff points to is, “[m]ore than anything else, the [source
selection decision] emphasized Golden Key’s lower price.” Def.’s Brief 20.
From this, YRC argues that defendant has thereby admitted that NSF did not
follow the selection criteria. We disagree. Plaintiff reads too much into these
statements. Defendant is accurately portraying the contracting officer’s
reasoning in rejecting the challenge to Golden Key’s use of YRC language in
its proposal. The contracting officer, fully aware as the source selection
authority as to how the technical factors of the proposals were weighed,
concluded that the allegedly cribbed language was simply not that important.
The language related only to Golden Key’s internal hiring process, not to how
7

We note, in any event, that Tingle concedes the substance of what Ms.
Wingate’s source alleged: he was involved in drafting the proposal.
8

“Def.’s Brief” refers to Defendant’s Motion for Judgment Upon the
Administrative Record and Response to Plaintiff’s Motion for Judgment Upon the
Administrative Record.
14

it would directly engage in assisting NSF, and it was embedded in other, rather
generic, self-assessing language in which Golden Key characterized its
management approach. Collectively that portion of the proposal supported the
‘very good’ rating. Nothing in the administrative record or in defendant’s brief
warrants our second guessing the contracting officer’s source selection
determination.
The Contracting Officer’s Rejection of Plaintiff’s Procurement Integrity
Act Challenge
Although it is not written in the clearest terms, we think a fair reading
of the contracting officer’s decision is that there was no support for the
allegations of a Procurement Integrity Act violation because the information
was not proprietary, and even if it was, it was not “stolen,” as plaintiff alleged.
What he concluded, in effect, is that the most plaintiff could establish is that
Golden Key plagiarized language from YRC. However, such plagiarism was
immaterial because Golden Key stood by the representations it made, and they
were, in any event, not very important to the agency’s substantive evaluation.
To the extent plaintiff persists in characterizing what happened as
“theft,” we agree with the contracting officer. There is simply no support for
the exaggerated assertions made. Tingle had authority to send the controverted
material to Golden Key, and it was not labeled as proprietary. It is baseless to
assert that the boiler plate language at the bottom of the covering emails
regarding the possibility of proprietary information turned this into a case of
misappropriation. The parties had adopted a protocol for labeling legitimately
private information, and it was not utilized. Plaintiff has made no serious
effort to prove that Golden Key should have known from the circumstances of
the transmission and use of the material that YRC expected it to be treated as
protected. Moreover, the material was incorporated into the parties’ joint
proposal to GSA, and YRC has not shown that Golden Key should be
presumed to have no rights in that proposal.
We agree with the contracting officer that what we are left with is
possible plagiarism. The most relevant concern that the contracting officer
should have had at that point is whether Golden Key stood by its proposal. He
concluded that it would, and we have no reason to question that conclusion,
particularly in light of the McCracken affidavit.

15

What plaintiff is left with, at least with respect to the cribbed language,
is its assertion that, by proffering the contested language as its own work
product, Golden Key made a material misrepresentation and one which made
the award wrongful per se. The only support it offers for that approach is a
reference to FAR 52.203-13(b)(3)(i)(A), which required Golden Key to report
to the Office of the Inspector General and the contracting officer its own
alleged violation of federal law. The purported violation of law refers to the
False Statement Act, 18 U.S.C. § 1001 (2006). The false statement, in turn,
at least according to plaintiff, is the implicit representation by Golden Key that
it drafted all the language included in its proposal. We are reluctant to hold
that plagiarism could never be relevant in a contracting officer’s evaluation of
the merits of a proposal, but we are comfortable holding that the contracting
officer’s treatment of the asserted plagiarism here was unassailable. The
notion that Golden Key should have reported itself for a criminal false
statement by virtue of its inclusion of the language in dispute here is
completely without support.
Nor do we find error in the contracting officer’s conclusion that NSF’s
selection of Golden Key was not materially dependent on the language at
issue. We cannot find that his determination was arbitrary or capricious, in
view of the context of the representations (what Golden Key would do to
maintain its own staff), as well as the other, non-offending language
supporting the agency’s evaluation. The contracting officer was well within
his discretion to decide that, even if the evaluators had known that the
language did not originate with Golden Key, they still would have assigned it
the various strengths it received and given it no deficiencies. None of the two
significant strengths relied on the information, and because no weaknesses
existed, Golden Key would still receive a ‘very good’ rating under the
solicitation requirements. See GTA Containers, 103 Fed. Cl. at 484-86
(finding a material misrepresentation in a proposal where the Marine Corps
placed “great emphasis” on the proposal that falsely claimed the use of a
certain component supplier); Sealift, Inc. v. United States, 82 Fed. Cl. 527, 537
(2008) (involving the fuel efficiency of a tanker in a charter contract with the
Navy).
Moreover, for the reasons we set out above, it was unnecessary for the
contracting officer mentally to ignore the representations. Golden Key stood
by them. The fact that they may have been plagiarized was immaterial to an
evaluation of the substance of the proposal.

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Finally, plaintiff contends that Golden Key engaged in a separate
misrepresentation when it “proposed a team of personnel comprised entirely
of non-YRCI employees”and then, immediately after award, hired virtually all
the YRC incumbent personnel. Pl.’s Brief 40. Plaintiff characterizes this as
a “bait and switch.” It points to a personnel chart in Golden Key’s technical
proposal, which recites that “GKG will prioritize the contract project team into
a structure organized for accountability with performance standards in place
as illustrated in Figure 1.2-1.” AR 140. The chart contains the names only of
Golden Key personnel. It is undisputed that, after award, Golden Key hired
or has made offers to many incumbent YRC personnel.
We agree with intervenor and defendant that this conduct did not
constitute a misrepresentation of Golden Key’s announced intent. Its proposal
included a statement that it would offer incumbent personnel a right of refusal,
AR 138-39, and that Golden Key would use “qualified and client approved
current contractor staff.” AR 137. Moreover, the administrative record
includes the following question and answer during the pre-bid process: “Q.
Will the awardee be expected to hire incumbent personnel? . . . Answer: It is
up to the winning contractor to decide whether to hire the incumbent or not.”
AR 122 (emphasis omitted). And on page 24 of its proposal, and in its “key
personnel” section, while Golden Key offers the resumes of only Golden Key
employees, it notes that Golden Key offered its own staff, contingent upon
“incumbent capture.” AR 159. There was no “bait and switch.”
CONCLUSION
For the reasons stated above, we grant intervenor’s motion to
supplement the record; we grant in part and deny in part defendant’s motion
to strike the five exhibits attached to plaintiff’s brief; we deny plaintiff's
motion to amend the complaint; we deny plaintiff’s motion for judgment on
the administrative record; and we grant defendant's motion for judgment on the
administrative record. The Clerk is directed to enter judgment accordingly.
No costs.

s/Eric G. Bruggink
ERIC G. BRUGGINK
Judge

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