NATIONAL AIR CARGO GROUP, INC. v. USA

Filing 59

REPORTED ORDER: The opinion previously filed under seal is reissued, showing no redactions. Signed by Judge Charles F. Lettow. (MZ)

In the United States Court of Federal Claims
No. 16-362C
(Filed Under Seal: August 19, 2016)
(Reissued: August 26, 2016)

NATIONAL AIR CARGO GROUP,
INC.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
UNITED AIR LINES, INC.,
Defendant-Intervenor.

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Post-award bid protest following
corrective action; challenge by a
successful offeror to addition of another
awardee to an IDIQ contract; jurisdiction;
standing; “firm offer” rule; “best value”
determination

Milton C. Johns, Fluet, Huber + Hoang, PLLC, Woodbridge, Virginia, for plaintiff.
Aaron E. Woodward, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C. for defendant. With him at the hearing
and on the briefs was Major George M. Ebert, Trial Attorney, Commercial Litigatio n Field
Support Center, United States Air Force, Andrews Air Force Base, Maryland. Also with him on
the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division,
Robert E. Kirschman, Jr., Director, and Douglas Mickle, Assistant Director, Civil Division,
United States Department of Justice, Washington, D.C. Of counsel were Karen L. Tibbals and
Peter B. Ries, Acquisition Attorneys, United States Transportation Command, Scott Air Force
Base, Illinois.
David S. Cohen, Cohen Mohr, LLP, Washington, D.C. for defendant-intervenor. With
him on the briefs were John J. O’Brien and Daniel J. Strouse, Cohen Mohr, LLP, Washington,
D.C.
OPINION AND ORDER 1

1 Because

this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims

LETTOW, Judge.
In this bid protest, National Air Cargo Group, Inc. (“National”) alleges a violation of
statutes and regulations “in connection with a procurement” conducted by the United States
Transportation Command (“TRANSCOM” or “government”). 28 U.S.C. § 1491(b)(1).
TRANSCOM awarded five indefinite-delivery/indefinite-quantity contracts on June 11, 2015 for
multi- modal international shipping of government cargo. National was one of the awardees.
That same day, TRANSCOM notified another offeror, United Air Lines, Inc. (“United”), that it
would not receive an award. United then filed an agency-level bid protest, which ultimately led
the agency to award a contract to United, bringing the total number of contracts awarded to six.
In response, National submitted protests regarding United’s award, first to the Government
Accountability Office (“GAO”) and then to this court, arguing that this sixth award violated
language in the solicitation that limited the number of awardees and required recompetition
before awarding further contracts beyond the original awardees. National also alleged that
United lacked relevant past performance. National’s protests resulted in TRANSCOM’s
agreement to take corrective action to reevaluate past performance for all six TRANSCOM
offerors. Subsequently, TRANSCOM reaffirmed the awards made to each of the six successful
offerors. That action prompted this renewed protest. The matter is now before the court on
cross-motions for judgment on the administrative record. A hearing was held on July 27, 2016.
For the following reasons, National’s motion for judgment is DENIED, the government’s and
United’s motions are GRANTED.
FACTS AND BACKGROUND 2
A. TRANSCOM Identifies a Need for an Indefinite-Quantity Contract for International Shipping
Services, to be Awarded to “Approximately Four” Contractors
TRANSCOM determined in 2014 that it needed international shipping services to move
government cargo to and from Afghanistan. AR 1-6.3 Owing to the government’s drawing
(“RCFC”) and the protective order entered in this case, it was initially filed under seal. The
parties were requested to review this opinion and file proposed redactions with the court. No
redactions were requested.
2 The

recitations that follow constitute findings of fact by the court drawn from the
administrative record of the procurement filed pursuant to RCFC 52.1(a), see Bannum, Inc. v.
United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (specifying that bid protest proceedings
“provide for trial on a paper record, allowing fact-finding by the trial court”), as well as from the
parties’ evidentiary submissions related to prejudice and equitable relief, see Holloway & Co. v.
United States, 87 Fed. Cl. 381, 391 n.12 (2009) (“It is the responsibility of th[e] court, not the
administrative agency [conducting the procurement], to provide for factual proceedings directed
toward, and to find facts relevant to, irreparability of harms or prejudice to any party or to the
public interest through grant or denial of injunctive [or declaratory] relief.”) (quoting PGBA,
LLC v. United States, 60 Fed. Cl. 567, 568 n.1 (2004), aff’d, 389 F.3d 1219 (Fed. Cir. 2004)).
3 Citations

to the administrative record refer to the record as certified by TRANSCOM
and filed with the court pursuant to RCFC 52.1(a). The record is paginated sequentially and is
2

down of military operations in that country, TRANSCOM contemplated a contract with a base
period of one year, followed by two one-year option periods. AR 1-6 to -7. TRANSCOM
proposed using an indefinite-quantity contracting vehicle for this procurement. AR 12-305
(citing 48 C.F.R. (“Federal Acquisition Regulations” or “FAR”) § 16.504(c)). An “indefinitequantity” contract, also known as an indefinite-delivery/indefinite-quantity (“IDIQ”) contract, is
a contract by which the government promises to buy a stated minimum and the contractor agrees
to sell or provide a stated maximum. FAR § 16.504(a)(1); see also John Cibinic, Jr., et al.,
Formation of Government Contracts 1386 (4th ed. 2011). Once an IDIQ contract is awarded, the
government issues task or delivery orders to one or more of the IDIQ contract holders to fulfill
its requirements. In some instances, the government awards one IDIQ contract to one contractor,
but in most cases the government awards multiple IDIQ contracts under one solicitation, thereby
creating a pool of contractors who compete with each other for task orders. See, e.g., FAR
§ 16.504(c)(1)(i) (requiring the contracting officer to “give preference” to making multiple
awards); FAR § 16.505(b)(1)(i) (providing that each awardee under a multiple-award contract
must have an opportunity to compete for any order exceeding $3,500).
TRANSCOM planned to award “approximately four” IDIQ contracts. AR 12-305. To
justify that number of awards, a contracting official wrote a memorandum-to- file explaining that
logistical/operational constraints in the [United States Central Command
(“CENTCOM”) area of Responsibility] are a significant consideration in
determining the efficient number of contract awards. Due to airfield limitations at
the CENTCOM aerial ports (which are worsening as the drawdown continues),
frequent Prior Permission Requests (PPR) denials have resulted in cargo delays.
Limiting the number of prime contractors to approximately four will provide
relief for this PPR problem as there will be fewer carriers submitting requests.
AR 12-305. 4
B. TRANSCOM Issues a Request for Proposals
On February 12, 2015, the government issued a request for proposals (“RFP”). AR 14321 to -520.5 The RFP established four factors that the government would consider in making its
also divided into tabs. In citing to the record, the court will first designate the tab, followed by
the page numbers, e.g., AR 1-6 refers to page 6 which is located in Tab 1 of the record.
4 CENTCOM is a unified military command responsible for the Middle East and
Afghanistan.
The record does not show when the government determined to make “approximately
four” awards. However, on December 17, 2014, a contract specialist with TRANSCOM wrote a
memorandum-to-file regarding one-on-one meetings between TRANSCOM and prospective
offerors during an “industry engagement day” at Scott Air Force Base on December 9, 2014. AR
9-235; see also AR 8-233 (showing registration instructions for the “industry engagement day”).
In the specialist’s memorandum, she noted that one prospective offeror asked “how many awards
do you intend to make?” AR 9-238. The “government response” was “approximately 4.” Id.
5 Solicitation

number HTC711-15-R-R001.
3

awards: quality of business proposal, technical ability, price, and past performance history. AR
14-407 to -09. As an initial matter, the government would determine whether an offeror’s
business and technical proposals were “acceptable.” AR 14-407. If so, the government would
then “make an integrated assessment” of the price and past performance factors to determine
which bidder offered the “best value” to the government. Id. Past performance and price would
be given “equal” weight in that evaluation. Id. With respect to past performance, the
government would give each offeror a “confidence assessment” of either substantial confidence,
satisfactory confidence, limited confidence, or no confidence. AR 14-408 to -09. If an offeror
had “no recent/relevant performance” of record, then the offeror would receive an “unknown
confidence” rating, which would be “treated neither favorably nor unfavorably.” AR 14-409.
The RFP further provided that “[t]his is an indefinite-quantity contract for the supplies or
services specified, and effective for the period stated.” AR 14-329. “The [g]overnment intends
to award approximately four (4) IDIQ contracts resulting from this solicitation to provide
[g]overnment shippers flexibility of choice and service coverage.” AR 14-407. Pursuant to FAR
§ 16.504(a)(1), which requires a minimum task order for each winner, the RFP guaranteed that
the government would purchase a minimum of $2,500 of international shipping services from
each awardee. AR 14-324. The solicitation set the maximum total dollar amount for all task
orders over three years at $296,448,852.21. Id. In essence, each winner thus would compete for
up to $296 million in task orders.
Offers were due on March 16, 2015. AR 14-321. In the RFP, TRANSCOM asked each
offeror to “agree[] to hold the prices in its offer firm for 180 calendar days from the date
specified for receipt of offers.” AR 14-406 (quoting FAR § 52.212-1(c), but replacing “30” in
that regulation with “180”). Pursuant to FAR § 52.212-2(c), the RFP further specified that
[a] written notice of award or acceptance of an offer, mailed or otherwise
furnished to the successful offeror within the time for acceptance specified in the
offer, shall result in a binding contract without further action by either party.
Before the offer’s specified expiration time, the [g]overnment may accept an offer
(or part of an offer), whether or not there are negotiations after its receipt, unless
a written notice of withdrawal is received before award.
AR 14-410 (emphasis added). The RFP also provided that, in certain circumstances, the
government could “reopen” the competition to add contractors to the pool:
1. Recompetition
1.1 The Government will initially establish the awardee pool by competitively
awarding multiple-award IDIQ contracts. As future task order requirements
within the program ceiling totals materialize, over the life cycle of this program,
the Government will compete those requirements amongst all existing IDIQ
contract holders to determine if the contract holders can adequately fulfill the
needed capability. The Government reserves the right to reopen the competition

4

under this solicitation if there is [a] shortfall in meeting the requirements among
the existing IDIQ contract holders or if it is in the Government’s best interest to
add new contractors to the original pool of IDIQ contract holders. When/if the
Government decides to reopen the solicitation, an announcement will be posted
via FedBizOps allowing new . . . offerors the opportunity to compete in a full and
open competition for an IDIQ contract and task orders to meet the new
requirements. Any existing IDIQ contract holder will not re-compete for an IDIQ
contract. The competitions will use the same evaluation methodology and
documentation (updated to reflect changes in regulatory provisions, requirements
and certifications) as the original competition.
AR 14-372 (emphasis added). After adding new contractors to the IDIQ pool, the government
would continue soliciting task orders from the expanded pool: “Once a new awardee(s) is
selected, that awardee(s) will be included in the awardee pool and will compete for future task
orders. Subsequent to a reopened competition, initial and new IDIQ awardees can compete for
future task orders.” Id.
In response to the RFP, National submitted a proposal, AR 24-792, as did United, AR 26961, along with five other offerors, for a total of seven offers. One offeror was subsequently
determined to be ineligible for award. See AR 107-2877. On June 5, 2015, the Source Selection
Authority (“SSA”) evaluated the offers. She concluded that, in terms of price, United had the
lowest total evaluated price at $75.9 million; National had the second-lowest price at $88.7
million; and the remaining offerors had higher prices, ranging from $91.3 million to $131.2
million. AR 71-1769. Turning to past performance, the SSA concluded that United had the
lowest past performance rating of the six offerors. Id. In the government’s view, United’s past
performance quality was either “very good” or “exceptional” in terms of work performed, but
that work was largely not relevant to the worked specified in the solicitation. AR 67-1697. For
that reason, United was given a “limited confidence” assessment. In contrast, the remaining
offerors all received ratings of either “satisfactory confidence” or “substantial confidence.” AR
71-1769. Because United had the lowest past performance rating, the SSA determined that “the
[g]overnment has a low expectation the offeror will successfully perform the required effort,
[and] therefore, [] United’s lower price is not advantageous to the [g]overnment considering the
risk the offeror will be unable to perform this effort.” AR 71-1773. The SSA thus elected to
award contracts to the other five offerors, but not United. AR 71-1774. The SSA’s decision
acknowledged that the solicitation specified “approximately four” awards, and on that point, the
SSA wrote that “I have determined awarding five contracts is appropriate because five offerors
represent the best value to the [g]overnment.” Id. She stated that
awarding five contracts ensures competition at the task order level as each
requirement is competed among the IDIQ contract holders and is consistent with
the terms of the solicitation. Additionally, the solicitation allows for global
expansion beyond the current countries of the United States, Afghanistan, United
Arab Emirates, and Kuwait, therefore, five contracts provide the [g]overnment
flexibility to meet unforeseen D[epartment ]o[f ]D[efense] requirements.
Id.

5

TRANSCOM announced awards to National and the four other bidders on June 11, 2015.
AR 76-2071; see also AR 72, 73, 74, 75 (showing acceptance letters by TRANSCOM to the
winning offerors). Concurrently, TRANSCOM informed United that it would not be awarded a
contract, owing to United’s “[p]ast [p]erformance confidence assessment rating.” AR 77-2175 to
-76. On June 16, 2015, TRANSCOM debriefed United, explaining it had lost because “United’s
[l]imited [c]onfidence is considered to be disproportionate to the benefits associated with their
lower [price].” AR 86-2314. United responded on June 26, 2015 by filing an agency-level bid
protest, arguing that TRANSCOM had failed to justify its conclusion that United did not offer
the best value to the government, given that United was the lowest-priced offeror and, in
United’s view, had a past performance history that was not dissimilar from at least two of the
awardees. AR 88-2319, -2327 to -38. On July 15, 2015, the contracting officer signed a
memorandum- for-the-record finding United was a responsible contractor, AR 90-2365, and
TRANSCOM then awarded an IDIQ contract to United, AR 91-2366; see also AR 92-2367
(showing parties’ agreement to settle the agency-level bid protest).
C. National Files Protests Challenging the Government’s Award to United
National filed a bid protest with GAO on July 27, 2015, arguing that TRANSCOM’s
decision to award six contracts violated the RFP’s limitations on awards. AR 94-2373 to -74.
National argued that the five initial awardees constituted the “original pool” under the RFP,
meaning that the government could not award any further contracts unless and until it complied
with the RFP’s reopening provisions. AR 94-2373. Because the government had not found a
“shortfall in meeting its requirements” within the existing five-contractor IDIQ pool, National
contended that the task order pool could not be reopened and expanded. AR 94-2373 to -74.
National also argued that United lacked past performance history in multi- modal transportation,
making the government’s award decision irrational. AR 94-2374. On September 24, 2015,
GAO summarily dismissed the protest, citing GAO policy: “we generally will not review a
protest that has the purpose or effect of reducing competition to the benefit of the protester.” AR
96-2507 to -08 (National Air Cargo Grp., Inc., B-411830 (Comp. Gen. Sept. 24, 2015) (“First
GAO Decision”)). Accordingly, GAO would “not consider the merits of the protester’s
allegations, which, in essence, seek to limit the agency’s discretion to increase the pool of
competition among the IDIQ contract holders.” First GAO Decision at 2.
National then filed a complaint in this court on October 13, 2015, alleging the same
violations of procurement law as asserted in its GAO protest. Compl., National Air Cargo Grp.,
Inc. v. United States, No. 15-1191 (Fed. Cl. Oct. 13, 2015). Several days thereafter, the
government informed the court that it would be “re-evaluating all offerors’ past performance,”
“conducting limited discussions (if needed) with the offerors concerning their past performance,”
and “making a new award decision.” Def.’s Notice of Corrective Action and Mot. to Stay
Briefing at 1, National Air Cargo Grp., Inc. v. United States, No. 15-1191 (Fed. Cl. Oct. 19,
2015); see also AR 100-2809 (informing offerors that the government “will re-evaluate past
performance for all offerors” and commenting that “[t]here will be no changes to price or
technical proposals”). Owing to this corrective action, the court granted the government’s
unopposed motion to dismiss the complaint as moot. Order of Dismissal, National Air Cargo
Grp., Inc. v. United States, No. 15-1191 (Fed. Cl. Nov. 30, 2015).

6

D. TRANSCOM Takes Corrective Action and Again Determines to Make Six Awards, Including
Awards to National and United
On January 15, 2016, the Source Selection Evaluation Board (“SSEB”) re-evaluated the
past performance of all offerors. AR 102-2818; see also Pl.’s Mot. for Judgment on the
Administrative Record (“Pl.’s Mot.”) at 8, ECF No. 45-1. Again, United was assigned a past
performance rating of “limited confidence.” AR 102-2831. The SSEB noted that United had
submitted five past performance references, which generally rated United as either “exceptional”
or “very good.” Id. However, the SSEB found that only one of those references was for
“relevant” shipping work. Of the remaining four references, two were “somewhat relevant” and
two were “not relevant.” Id. Although the SSEB could confirm that United had “some
capability to transport cargo via air, land and sea,” the references “do not clearly demonstrate
whether or not the offeror could successfully perform international cargo transportation and
distribution services via all three modes (air, land and sea) within a single contract at the
magnitude and complexity of this effort.” AR 102-2831 to -32.
On January 19, 2016, TRANSCOM’s Source Selection Advisory Council (“SSAC”),
headed by a new chairperson, performed a comparative analysis. AR 103-2845 to -54. The
SSAC ranked the proposals, finding National was the second highest rated offeror. AR 1032849. The SSAC next found that United was the third highest rated offeror because it was “rated
technically acceptable, provided the lowest [total evaluated price] and received the third highest
past performance confidence assessment rating of [l]imited [c]onfidence indicating the
[g]overnment has a low expectation that this offeror will successfully perform the required
effort.” AR 103-2850. The SSAC found that “[t]his weighting was determined appropriate
because performance risk is mitigated by competition at the task order level.” Id. Although
United’s past performance received the lowest acceptable rating, and the worst rating among the
offerors, the solicitation had also provided that price would be “equal” to past performance in the
rating of offerors. Id. For that reason, “the risk in the area of performance is mitigated by the
Ordering Procedures for task order award including in the contract, which considers performance
metrics captured on a monthly basis.” AR 103-2850 to -51. “Based on the above,” the SSAC
concluded that “the risk of awarding to United does not outweigh the potential benefits.” AR
103-2581.
The SSAC then ranked the remaining offerors in places four through six. AR 103-2852
to -53. Surveying the offerors, the SSAC recommended six awards, including an award to
United, finding that that number complied with the “approximately four” awards limitation. AR
103-2853. The SSAC specifically found that all six offerors had sufficient technical capability,
and that the award of six contracts would generate lower prices through increased competition.
Id. Six awards would also “provide the [g]overnment flexibility to meet unforeseen D[epartment
]o[f ]D[efense] requirements,” which could increase owing to the fact that “the solicitation
allows for global expansion beyond the current countries of the United States, Afghanistan,
United Arab Emirates, and Kuwait.” Id.
On January 21, 2016, the SSA again awarded contracts to all six offerors. AR 107-2877.
Citing the SSAC report, the SSA ranked all six offerors according to best value, finding National
was the second highest ranked offeror and that United was the third highest ranked offeror. AR

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107-2879. Regarding United, the SSA agreed with the SSAC; although “there is some risk
associated with United’s performance history[,] . . . the risk to the [g]overnment in awarding to
United is mitigated by the best value selection process at the task order level.” Id.
E. National Renews Its Protest of the Award to United
National protested this decision at GAO on January 27, 2016, alleging the same errors as
in its prior protests. AR 109-2886. Again, GAO dismissed the protest. AR 112-3059 (National
Air Cargo Grp., Inc., B-411830.2, 2016 CPD ¶ 85, 2016 WL 1055743 (Comp. Gen. Mar. 9,
2016) (“Second GAO Decision”)). Unlike GAO’s first decision, which dismissed the protest on
the policy ground that GAO would not hear protests to decrease competition, the second GAO
decision dismissed National’s protest for failing to satisfy the standing requirements of 4
C.F.R. § 21.0(a)(1), which provides that “a protester must be an actual or prospective bidder or
offeror whose direct economic interest would be affected by the award of a contract or the failure
to award a contract.” Second GAO Decision at 4. GAO summarily concluded that a “protester
is not an interested party where it would not be in line for contract award were its protest to be
sustained.” Id.
On March 21, 2016, National responded to GAO’s dismissal by again filing a protest in
this court, making the same allegations as in its prior complaint. On March 22, 2016, the court
held an initial status conference and set an expedited schedule by which the government would
file a motion to dismiss for lack of jurisdiction and simultaneously National would request a
temporary restraining order or preliminary injunction. United was granted leave to intervene.
Order of March 24, 2016, ECF No. 10. On April 28, 2016, the court denied both the defendants’
motions to dismiss and plaintiff’s request for preliminary and temporary injunctive relief.
National Air Cargo Grp., Inc. v. United States, 126 Fed. Cl. 281 (2016). The court then set a
schedule by which the government would file the administrative record and the parties would
submit and brief cross-motions for judgment on that record. As of July 27, 2016, TRANSCOM
had awarded at least one task order to each of the six awardees. Hr’g Tr. 26:11-14 (July 27,
2016).
JURISDICTION
The court has “jurisdiction to render judgment on an action by an interested party
objecting to a solicitation by a [f]ederal agency for bids or proposals for a proposed contract or to
a proposed award or the award of a contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (emphasis
added). This grant of jurisdiction covers not only “pre- and post-award bid protests” but any
alleged violation of law “in connection with a procurement. ” RAMCOR Servs. Grp., Inc. v.
United States, 185 F.3d 1286, 1288-89 (Fed. Cir. 1999). The latter provision is “very sweeping
in scope. As long as a statute has a connection to a procurement proposal, an alleged violation
suffices to supply jurisdiction.” Id. at 1289.
In the government’s and United’s motions to dismiss for lack of subject matter
jurisdiction, they made two facial, as contrasted to factual, arguments that National’s case was

8

not within the court’s subject matter jurisdiction.6 First, they argued that because National was a
contract awardee in a multiple-award IDIQ contract pool, it categorically could not file a bid
protest under Paragraph 1491(b)(1) and was instead required to proceed according to the
Contract Disputes Act of 1978 (“CDA”). Def.’s Mot. to Dismiss at 4-5, ECF No. 11. Second,
they asserted that National had suffered no cognizable injury, and therefore was not an
“interested party” within the meaning of Paragraph 1491(b)(1). Id. at 5-6. Owing to these facial
arguments, the court permitted the government to abstain from filing the agency’s procurement
record while the court resolved these preliminary cross-motions. Notably, facial challenges can
be decided without an administrative record, whereas factual challenges often can be resolved
only by reference to the record. E.g., Blue Dot Energy Co. v. United States, 61 Fed. Cl. 548, 554
(2004) (denying a factual motion to dismiss pursuant to RCFC 12(b)(1) because such a motion
was “more appropriately resolved at the summary judgment stage”).
The court denied the defendants’ motions to dismiss, National Air Cargo, 126 Fed. Cl. at
289-96, holding first that National had non-frivolously alleged a violation of procurement law
“in connection with a procurement” within the meaning of Paragraph 1491(b)(1), not a claim
under the CDA. Id. at 289-92 (citing Systems Application & Techs., Inc. v. United States, 691
F.3d 1374, 1381 (Fed. Cir. 2012); Distributed Solutions, Inc. v. United States, 539 F.3d 1340,
1345 n.1 (Fed. Cir. 2008)); see also Coast Prof’l, Inc. v. United States, __ F.3d __, __, 2016 WL
3734671, at *4 (Fed. Cir. July 12, 2016) (holding that, in the context of a General Services
Administration schedule contract, which is a type of IDIQ contract, an existing contractor’s
challenge to an award-term extension was a bid protest claim under Paragraph 1491(b)(1), not a
CDA claim). Second, the court determined that National had standing as an “interested party”
within the meaning of Paragraph 1491(b)(1). National Air Cargo, 126 Fed. Cl. at 296. The
court held that the traditional “substantial chance” test for prejudice was inapposite due to the
nature of National’s protest; instead National’s standing should be analyzed by asking whether
National had demonstrated a non-trivial competitive injury that could be redressed by judicial
relief. Id. at 290-96 (citing Systems Application, 691 F.3d at 1382; Weeks Marine, Inc. v. United
States, 575 F.3d 1352, 1361 (Fed. Cir. 2009)). The court then held that National had established
such an injury for the purpose of overcoming a facial motion under RCFC 12(b)(1), based on its
allegations and on the parties’ agreement that United would add significant competition to the
task order pool. Id. at 297 (“In short, National has alleged violations of procurement law and

6 Motions

to dismiss pursuant to RCFC 12(b)(1) “come in two different forms – facial and
factual attacks.” 2 James Wm. Moore, Moore’s Federal Practice § 12.30[4], at 12-45 (3d ed.
2012). “A facial attack questions the sufficiency of the pleading. In reviewing a facial attack, a
trial court accepts the allegations in the complaint as true. On the other hand, when a court
reviews a complaint under a factual attack, the allegations have no presumptive truthfulness, and
the court . . . has discretion to allow affidavits, documents, and even a limited evidentiary
hearing to resolve disputed jurisdictional facts.” Id.; see Land v. Dollar, 330 U.S. 731, 735 &
n.4 (1994); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991); Rollock Co. v. United
States, 115 Fed. Cl. 317, 324 (2014); see also Odyssey Marine Exploration, Inc. v. Unidentified
Shipwrecked Vessel, 657 F.3d 1159, 1169-70 (11th Cir. 2011); Montez v. Department of the
Navy, 392 F.3d 147, 149 (5th Cir. 2004).

9

regulations that bring its protest within the ambit of Paragraph 1491(b)(1), and its allegations of
harm suffice to establish its standing to sue.”) (emphasis added).7
After those motions to dismiss were resolved, the government filed the administrative
record, and the case has now proceeded with the submission of dispositive motions based on that
record. See Bannum, 404 F.3d at 1356 (explaining that bid protest proceedings call for a “trial
on a paper record”). At this final stage, the defendants have not asked the court to revisit
jurisdiction based on the factual record, although they could have done so. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“At the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those specific facts that are necessary to
support the claim. . . . [But] at the final stage, those facts (if controverted) must be supported
adequately by the evidence adduced at trial.”) (emphasis added) (quotation marks and citations
omitted). While the defendants have asserted in their briefs that National did not suffer prejudice
on the merits, those arguments are expressly directed at “prejudic[e]” under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706, not jurisdictional prejudice. E.g., Def.’s Reply at 2-3,
ECF No. 52 (arguing National did not suffer merits prejudice). Compare Information Tech. &
Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (discussing
jurisdictional prejudice), with Bannum, 404 F.3d at 1357 (discussing merits prejudice pursuant to
the standards of 5 U.S.C. § 706, which sets out a “rule of prejudicial error”). See also Digitalis
Educ. Solutions, Inc. v. United States, 97 Fed. Cl. 89, 93 (2011) (“A protestor must demonstrate
prejudice twice: first to establish standing and then again to prevail upon the merits.”), aff’d, 664
F.3d 1380 (Fed. Cir. 2012); PGBA, LLC v. United States, 60 Fed. Cl. 196, 220-21 (2004)
7 When

analyzing a similar “interested” party statute, the Supreme Court has held that
increased competition was sufficient to confer statutory standing on a competitor seeking judicial
review of agency action. See F.C.C. v. Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940)
(interpreting Section 402(b) of the Communications Act of 1934, 47 U.S.C. § 402(b), which
permitted an appeal by parties “whose interests are adversely affected” by the F.C.C.’s grant of a
license, and explaining “[Congress] may have been of opinion that one likely to be financially
injured by the issue of a license would be the only person having a sufficient interest to bring to
the attention of the appellate courts errors of law in the action of the [F.C.C.] in granting the
license.”). The Supreme Court further commented that although increased competition would
confer standing on a competitor, that increased competition was not a meritorious reason to
reverse the F.C.C.’s granting of that license; instead, the competitor-plaintiff would need to show
that the F.C.C. had violated some provision of law. Id. at 476-77. A long line of cases support
that distinction. E.g., Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
157-58 (1970) (holding that competitors, who alleged that an agency’s action had increased
competition, were “aggrieved” persons pursuant to Section 702 of the Administrative Procedure
Act, 5 U.S.C. § 702, but that whether they had a “legal interest” under the relevant substantive
statutes was a “merits” determination to be decided in subsequent proceedings); see also
Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1332 (Fed. Cir. 2008)
(discussing how increased competition can be an Article III injury-in- fact); Louisiana Energy &
Power Auth. v. F.E.R.C., 141 F.3d 364, 367 (D.C. Cir. 1998) (“We repeatedly have held that
parties suffer constitutional injury in fact when agencies lift regulator y restrictions on their
competitors or otherwise allow increased competition.”).

10

(finding that a protestor was prejudiced by the procuring agency’s errors in making an award of a
contract, but denying equitable relief), aff’d, 389 F.3d 1219 (Fed. Cir. 2004). Because the
defendants do not contest jurisdiction by reference to the factual record, the court pauses only
briefly to find that the factual record generally proves National’s allegations that it is an actual
bidder who will suffer a non-trivial competitive injury in the form of significantly increased
competition for task orders.8 And as noted, United is participating in the task order pool and has
received a task order. Hr’g Tr. at 26:11-14. These factual circumstances suffice to support a
finding of jurisdictional prejudice. Cf. Tinton Falls Lodging Realty, LLC v. United States, 800
F.3d 1353, 1360 (Fed. Cir. 2015) (finding jurisdictional prejudice in a post-award context where
“none of the parties disputes the Claims Court’s finding that [it was] at least a realistic
possibility” that the government would reopen the competition on remand so that the plaintiff
could bid).9
One jurisdictional issue remains. United now makes a facial argument that the court lacks
jurisdiction to hear National’s claim that the government violated the “reopening” provisions of
the solicitation. United specifically disclaims making a jurisdictional challenge to the other
aspects of National’s complaint, asserting that
Sections IA, II, and III of National’s [motion] all challenge the reasonableness of
the agency’s selection of United as the sixth awardee. However, in section IB,
[which alleges the government “reopened” the competition in violation of the
RFP], National is focused . . . not on the selection of an additional vendor, but on
the method by which such selections occur. This argument has no nexus to the
injury that allowed National to press its claim before this [c]ourt. From an injury
perspective, the result is the same regardless of whether vendors are added
through the process National envisions (a new, competitive procurement) or the
process the agency followed.
Def.-Interv.’s Cross-Mot. for Judgment on the Administrative Record at 10, ECF No. 48.
National counters that the RFP required the government to find a “shortfall” before adding
additional contractors. Pl.’s Mot. at 13-14. National further argues that the government did not
find such a “shortfall.” Id. Assuming National is correct, the RFP’s recompetition provision
would have forbidden the government from adding United, or any other contractor, to the pool
unless TRANSCOM found a shortfall. Thus the result would not have been “the same” whether
or not the government followed the recompetition procedure.

8 The

parties agreed earlier in this case that the increased competition would be
significant, National Air Cargo, 126 Fed. Cl. at 295, and they have not disavowed that agreement
at this final stage. See Weeks Marine, 575 F.3d at 1359-60 (giving minimal factual analysis to
whether plaintiff was a “prospective bidder” after the government “concede[d]” that plaintiff was
a prospective bidder as a matter of fact).
9 The

record also suggests that National could be harmed by flight delays resulting from
increased “Prior Permission Requests” at CENTCOM airports, AR 12-305, although no party has
raised this issue.
11

For the reasons stated in the court’s earlier opinion, National Air Cargo, 126 Fed. Cl. at
289-96, and for the additional reasons discussed below, the court concludes that United’s partial
standing contention is unavailing and that the court has jurisdiction to resolve all claims in this
protest.
STANDARDS FOR DECISION
This court reviews agency procurement decisions “pursuant to the standards set forth in
section 706 of title 5 [the APA].” 28 U.S.C. § 1491(b)(4). The cited section “provides, in
relevant part, that a ‘reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Centech Grp., Inc. v. United States, 554 F.3d 1029,
1037 (Fed. Cir. 2009) (quoting 5 U.S.C. § 706)). Accordingly, the court may set aside a
procurement action under Paragraph 1491(b)(4) if “(1) the procurement official’s decision lacked
a rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001). Of particular relevance to this case, “[i]t is hornbook law that agencies
must evaluate proposals and make awards based on the criteria stated in the solicitation.”
Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 386 (2003), aff’d, 365 F.3d 1345
(Fed. Cir. 2004). Interpretation of a solicitation is a question of law, and it begins with the plain
language of the document. Banknote Corp., 365 F.3d at 1353. The court “must consider the
solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable meaning
to all of its provisions.” Id. (citing Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038
(Fed. Cir. 2003) (en banc)).
In cases where the agency has taken corrective action that resulted in a new evaluation
and source selection decision, the court must review the agency’s new decision. Tenica &
Assocs., LLC v. United States, 123 Fed. Cl. 166, 171 (2015). The initial agency decision
typically will not present a live controversy after corrective action, making moot those errors
alleged in an initial decision. Id. (citing Coastal Envt’l Grp., Inc. v. United States, 114 Fed. Cl.
124, 129 (2013)). Nonetheless, the initial procurement decision will continue to present a live
controversy to the extent errors in the original evaluation have gone unresolved during corrective
action, cannot be fixed in corrective action, or otherwise continue to affect the decision made by
the agency. E.g., Croman Corp. v. United States, 106 Fed. Cl. 198, 213 (2012) (“Plaintiff also
challenged the agency’s corrective action as being insufficient to cure the alleged errors
committed by the agency in the initial evaulations . . . . Plaintiff’s objection . . . is not moot.”).
ANALYSIS
National makes three overall arguments. First, it asserts that when TRANSCOM sent an
“unsuccessful offeror” letter to United on June 11, 2015, that letter operated to terminate
TRANSCOM’s power to accept United’s offer, meaning United could not be awarded a contract
unless TRANSCOM found a “shortfall” and then reopened the competition pursuant to the
RFP’s recompetition provisions. Second, National contends that even if United’s offer remained
valid, TRANSCOM could not award six contracts during corrective action because that number
of awards would violate the “approximately four” awards limitation in the RFP. Finally,

12

National argues that TRANSCOM’s best value analysis during corrective action was arbitrary
and capricious because it irrationally concluded that United’s minimal past performance history
could be offset by its low price. The court addresses each argument in turn.
A. Whether TRANSCOM Terminated Its Power to Accept United’s Offer When TRANSCOM Sent
an “Unsuccessful Offeror” Letter to United
National asserts that United’s offer expired when TRANSCOM informed United by letter
on June 11, 2015 that it would not receive an award. Pl.’s Mot. at 14. If National is correct, then
TRANSCOM could not have accepted United’s offer on July 15, 2015, nor at any other time,
without reopening the competition pursuant to the recompetition provisions. AR 14-372. This
would also, in National’s view, nullify the corrective action.
In this case, the parties have implicitly assumed that the government’s RFP was a
solicitation for an offer. See Space Research Corp. v. United States, 225 Ct. Cl. 721, 722 (1980)
(holding that an RFP was a solicitation, not an offer). The RFP contained specific terms to
which an offeror would need to adhere for the government to consider that offeror’s proposal.
See, e.g., Refining Assocs., Inc. v. United States, 124 Ct. Cl. 115, 117 (1953) (examining whether
an offeror’s offer was valid by analyzing whether it complied with the terms of an invitation for
bids). Thus to resolve plaintiff’s claim, the court begins with the solicitation’s plain language.
Banknote, 365 F.3d at 1353. The solicitation provided that “[t]he offeror agrees to hold the
prices in its offer firm for 180 calendar days from the date specified for receipt of offers.” AR
14-406. This provision was adapted from FAR § 52.212-1(c), entitled “period of acceptance of
offers,” which subsection specified a 30-day acceptance period, but that timing was modified in
the solicitation to 180 days. The date designated for receipt of offers was March 16, 2015. AR
14-321. Further, the RFP established that “[b]efore the offer’s specified expiration time, the
[g]overnment may accept an offer (or part of an offer), whether or not there are negotiations after
its receipt, unless a written notice of withdrawal is received before award.” AR 14-410 (quoting
FAR § 52.212-2(c)). Taken as a whole, these provisions plainly mean that TRANSCOM could
have accepted offers and formed a contract at any point during 180 days, unless the offeror
withdrew its offer. Accord WIT Assocs., Inc. v. United States, 122 Fed. Cl. 1, 12 (2015), aff’d,
__ Fed. Appx. __, 2016 WL 4363179 (Fed. Cir. Aug. 16, 2016).
By stating that offers would remain extant until withdrawn or 180 days had expired, the
FAR and the solicitation invoked the traditional “firm offer” rule, by which an offeror would be
held to his or her offer even if the offeree rejected it or made a counteroffer. See Black’s Law
Dictionary 1113 (2004) (providing a definition of “irrevocable offer,” referencing the “firm
offer” rule); see also Restatement (Second) of Contracts § 37 (1981) (observing that although an
offeree’s power of acceptance is generally terminated by a rejection, at common law a promise to
hold offers firm would be an option contract for which the offeree’s “power of acceptance” is
“not terminated by rejection or counter-offer . . . unless the requirements are met for discharge of
a contractual duty”); International Tel. & Tel., ITT Defense Commc’ns Div. v. United States, 453
F.2d 1283, 1290-91 (Ct. Cl. 1972) (“The offeror’s limitation of the time is not operative if it is
not communicated to the offeree . . . but if so communicated it operates with certainty.” (quoting

13

1 Arthur L. Corbin, Corbin on Contracts § 35 (1963 ed.))).10 In this instance, the “firm offer”
rule was relaxed slightly by FAR § 52.212-2(c) because the offeror retained power to withdraw
its offer. Here, United continuously held its offer open after TRANSCOM’s letter of June 11,
2015, as evidenced by United’s agency-level bid protest. In short, its offer was never
withdrawn.11 National cites no authority for the proposition that a government contractor’s offer
in a negotiated procurement is terminated by a rejection letter even when that contractor
continues to hold out its offer. Such a rule would make corrective action problematic in many
post-award circumstances and thus cannot be accepted.
B. Whether TRANSCOM Awarded More than “Approximately Four” Awards
National argues that TRANSCOM could not award six contracts because the RFP limited
the number of awards to “approximately four.” Pl.’s Mot. at 12. The relevant solicitation
language provides: “[t]he [g]overnment intends to award approximately four (4) IDIQ contracts
resulting from this solicitation to provide [g]overnment shippers flexibility of choice and service
coverage.” AR 14-329. In this court’s opinion denying National’s motion for a preliminary
injunction, the court made the following assessment of National’s theory:
In this context, the word “approximately” generally means “nearly exact” or
nearly “accurate.” Webster’s II New College Dictionary 56 (2001). It does not
mean “precisely” or “exactly.” The phrase “approximately four” therefore
permits the government to award more than four contracts. National appears to
concede this point, because it does not challenge the fifth contract award. Instead,
it challenges only the sixth award, which went to United. The question then is
whether “approximately four” means “not more than five.” Plaintiff cites no
authority – no definitions in the solicitation or regulations – to explain why
“approximately four” should have such meaning.
National Air Cargo, 126 Fed. Cl. at 298. National’s brief on the merits has not assuaged the
court’s concerns. National’s briefing makes no textual argument that “approximately four” must
be interpreted as it advocates. Pl.’s Mot. at 12-13 (citing no canons of interpretation, statutes,
regulations, or case law to support its argument). Instead, National concedes that this term is
10 Even

if the solicitation or the FAR might be read as silent on this issue, the federal
common law of contracts could fill that gap, assuming that effective administration of the FAR
were to be deemed to require a uniform federal rule. See United States v. Kimbell Foods, Inc.,
440 U.S. 715, 726-28 (1979) (citing Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67
(1943)).
the time for accepting an offer expires, “an offeror may ‘revive the offer either
expressly or impliedly through conduct’ but ‘only if such revival does not compromise the
integrity of the competitive process or prejudice other offerors.’” WIT Assocs., 122 Fed. Cl. at
14 (quoting Camden Shipping Corp. v. United States, 89 Fed. Cl. 433, 440 (2009) (in turn citing
Rice Servs., Ltd. v. United States, 25 Cl. Ct. 366, 368 (1992) (internal citations omitted)).
United’s conduct – including its agency-level protest – shows that its offer was continuously held
out to the government, and National has made no argument that any such continuation would
prejudice the integrity of the procurement system.
11 When

14

“admittedly ambiguous on its face.” Pl.’s Mot. at 13. National then argues that the agency’s
initial June 2015 determination to award five contracts amounts to an agency determination that
“approximately four” means “five,” which meant that the agency subsequently “revers[ed] itself”
by making six awards during corrective action. Pl.’s Mot. at 13. But that argument is not
convincing even though TRANSCOM did “reverse itself” by making six awards during
corrective action; that was TRANSCOM’s prerogative so long as its decision complied with the
solicitation and applicable law. Here, TRANSCOM justified its reversal by making findings that
“six” awards were “approximately four” and that this number of awards was in its interest,
compare AR 71-1774 (explaining why TRANSCOM was making five awards), with AR 1032853 (explaining why TRANSCOM was making six awards), and National has not disputed
those underlying findings. As noted previously, TRANSCOM had cited congestion at
CENTCOM airports as a basis for the “approximately four” awards limitation, AR 12-305, and
National does not address how six awards might affect that congestion. See Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2010) (explaining that in “our adversarial system,”
the “courts are generally limited to addressing the claims and arguments advanced by the
parties. . . . Courts do not usually raise claims or arguments on their own.”) (citing Sanchez–
Llamas v. Oregon, 548 U.S. 331, 356–357 (2006)). The mere fact that the agency changed
course does not prove that its revised action was arbitrary. See F.C.C. v. Fox Television Stations,
Inc., 556 U.S. 502, 514-15 (2009).
C. Whether TRANSCOM Arbitrarily Evaluated Offerors for Best Value, Owing to Its Review of
the Offerors’ Past Performance
National’s final argument is that TRANSCOM’s corrective action was arbitrary.
National points to the fact that TRANSCOM’s past performance rating for United did not change
between the initial evaluation in 2015 and the corrective action in 2016 – both evaluations gave
United a “limited confidence” rating – yet the corrective-action decision found that this limited
confidence rating was offset by United’s low price. Pl.’s Mot. at 16-17. National’s factual
premises for this argument are fully supported by the record. Compare AR 102-2831 (corrective
action, giving United a limited confidence rating), with AR 71-1769 and AR 67-697 (initial
evaluation, same). Even so, the government’s re-evaluation of “best value” in 2016 was more
extensive and considered additional matters that were not raised in the 2015 analysis. In the
initial analysis, the government decided that United did not provide the best value, despite the
fact that it offered the lowest evaluated price. AR 71-1773. This initial analysis may have
ignored the solicitation’s direction that past performance was equal to price, and it also may have
failed to consider the task order context. But during corrective action, the government
determined United did offer the requisite value. The SSAC wrote in 2016 that “this weighting
was determined appropriate because performance risk is mitigated by competition at the task
order level.” AR 103-2853. The SSAC observed that “the Ordering Procedures for task order
award” would include “consider[ation of] performance metrics captured on a monthly basis.”
AR 103-2850 to -51.
National insists that TRANSCOM’s conclusion – that United offered appropriate value
on the basis that “performance risk is mitigated by competition at the task order level” – is
arbitrary and capricious. Pl.’s Mot. at 17. When applying the APA’s arbitrary and capricious
standard to a best value procurement, that standard will as a matter of practicality but not as a

15

matter of law be more difficult to satisfy than in cases involving other procurement criteria,
because a best value procurement inherently calls for the contracting officer to exercise his or her
discretion. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (“Procurement
officials have substantial discretion to determine which proposal represents the best value for the
government.”); see also Serco Inc. v. United States, 81 Fed. Cl. 463, 496 (2008) (“To be sure, . . .
plaintiffs have a significant burden of showing error in [contesting a best-value decision] because
a court must accord considerable deference to an agency’s best-value decision in trading off
price with other factors.”). Here, National has not met its burden. The court discerns no
irrationality in TRANSCOM’s trade off analysis during corrective action. It is rational to think
that somewhat higher performance risk could be offset by a considerably lower price, especially
when price and past performance were weighted equally. E.g., Blackwater Lodge & Training
Ctr., Inc. v. United States, 86 Fed. Cl. 488, 515 (2009). And, it is sensible for the agency to
conclude that United’s past performance risks could be shown to have been overstated, or not, by
United’s actions in carrying out task orders awarded on this contract. If United performed poorly
on the task orders it received, that performance would be an obstacle to award of additional task
orders in the future; if it performed well, then the government would have access to a low-priced
provider of shipping services.12
National’s final rejoinder is that the contracting officer “sought an expedient end to a
protest by U[nited] and simply made another award.” Pl.’s Mot. at 18. That contention is
unavailing. The corrective action followed a reasoned analysis of why United’s limited past
performance was offset by its low price in the task order context. This is not a case in which the
agency simply bolstered its initial findings during corrective action so as to prevail in a bid
protest. Rather, the court concurs with United that it was likely inappropriate for the agency to
not make an award to United on these facts.
CONCLUSION
National’s motion for judgment on the administrative record is DENIED. The
government’s and United’s cross-motions for judgment on the administrative record are
GRANTED. The clerk shall enter judgment in accord with this disposition.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge

12 National

asserts that TRANSCOM had previously determined that United was not a
responsible contractor. Pl.’s Mot. at 18. That factual assertion is not supported by the record.
16