SALLYPORT GLOBAL HOLDINGS, INC v. USA

Filing 53

REPORTED OPINION. Plaintiff's motion for judgment on the administrative record DENIED. Signed by Senior Judge Nancy B. Firestone. (dpk) Copy to parties.

In the United States Court of Federal Claims
No. 16-817C
(Filed: November 30, 2016)*
*Opinion originally filed under seal on November 21, 2016
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SALLYPORT GLOBAL HOLDINGS, )
INC.,
)
)
Plaintiff,
)
)
v.
)
)
THE UNITED STATES,
)
)
Defendant,
)
and
)
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EXP FEDERAL, INC.,
)
)
Defendant-Intervenor. )
)

Bid Protest; Motion for Judgment on
the Administrative Record; United
States Army Corps of Engineers;
Harmless Error; Mandatory Minimum
Requirements

Stuart B. Nibley, Washington, DC, for plaintiff. Andrew N. Cook, Amy M. Conant,
and Christopher H. Bell, Washington, DC, of counsel.
Anand R. Sambhwani, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, with whom were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, and
Douglas K. Mickle, Assistant Director, for defendant. C. Clay Weisenberger, Assistant
Counsel, United States Army Corps of Engineers, Hunstville, AL, of counsel.
Joseph D. West, Washington, DC, for defendant-intervenor. Lindsay M. Paulin,
Washington, DC, of counsel.

OPINION
FIRESTONE, Senior Judge.
This post-award bid protest concerns the unsuccessful bid of plaintiff Sallyport
Global Holdings, Inc. (“Sallyport”) for a contract with defendant United States Army
Corps of Engineers (the “agency” or “government”) to provide electrical safety
assessments, repairs, materials and management within the United States Central
Command. The contract was instead awarded to defendant-intervenor exp Federal Inc.
(“exp Federal”), the incumbent contractor. Before the court are the parties’ crossmotions for judgment on the administrative record filed pursuant to Rule 52.1(c) of the
Rules of the United States Court of Federal Claims (“RCFC”).
Sallyport argues that the award to exp Federal should be set aside for three
reasons. First, Sallyport argues that it was arbitrary and capricious for the agency to find
that Sallyport’s proposal for the Project Manager position was deficient. Second,
Sallyport argues that it was arbitrary and capricious for the agency to determine that
Sallyport’s representatives improperly contacted agency personnel during a blackout
period. Third, Sallyport argues it was arbitrary, capricious, and contrary to law for the
agency to determine that exp Federal’s proposed Project Manager met the solicitation’s
requirements.
For the reasons explained below, the court finds that Sallyport has not met its
burden of showing that the agency committed an error that prejudiced Sallyport.
Therefore, the government and defendant-intervenor’s cross-motions for judgment on the
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administrative record are GRANTED and plaintiff’s motion for judgment on the
administrative record is DENIED.
I.

FACTS
A.

The Solicitation

The procurement at issue involves a firm fixed price Task Order (“Contract”) for
Electrical Safety Assessments, Repairs Program, Materials Management, and Control
Services within the United States Central Command’s Area of Responsibility
(“CENTCOM AOR”), which includes Iraq, Jordan, Kuwait, the United Arab Emirates,
Bahrain, and Qatar. AR 88-138. The Request for Quotations Letter No. 1037286
(“RFQ”), and accompanying Performance Work Statement (“PWS”), 1 issued on January
14, 2016, sought proposals to provide low voltage electrical power systems in the Middle
East. The contractor would be required to inspect, update, and repair electric/life/safety
hazards for low voltage electrical power systems for facilities that house United States
service members. AR 122.
The solicitation provided that the contract would be awarded to the proposal that
represented the “best overall value to the Government, with the appropriate consideration
given to [ ] (3) evaluation factors.” Id. at 88. The three factors for the award were: (1)
technical approach; (2) price/costs and related information; and (3) past performance. Id.
The RFQ stated that the bidder’s technical approach was “slightly more important than
price and significantly more important than past performance,” and that price will be the

1

This opinion refers to the RFQ and the PWS collectively as “the solicitation.”
3

controlling factor if the “competing quotes are determined to be substantially equal after
the evaluation of [the] [t]echnical [a]pproach and [p]ast performance.” Id. The technical
factor included seven tasks, each of which could receive a possible rating, from worst to
best, of “Unacceptable,” “Marginal,” “Acceptable,” “Good,” and “Outstanding.” Id. at
89. Each proposal would receive an overall technical rating on the same scale, which the
solicitation explained as follows:
Combined Technical/Risk Ratings
Rating
Description
Outstanding
Proposal meets requirements and indicates an exceptional
approach and understanding of the requirements. Strengths far
outweigh any weaknesses. Risk of unsuccessful performance is
very low.
Good
Proposal meets requirements and indicates a thorough approach
and understanding of the requirements. Proposal contains at least
one strength and no deficiencies. Risk of unsuccessful
performance is low.
Acceptable
Proposal meets requirements and indicates an adequate approach
and understanding of the requirements. Strengths and weaknesses
are offsetting or will have little or no impact on contract
performance. Risk of unsuccessful performance is no worse than
moderate.
Marginal
Proposal does not clearly meet requirements and has not
demonstrated an adequate approach and understanding of the
requirements. The proposal has one or more weaknesses which
are not offset by strengths. Risk of unsuccessful contract
performance is high.
Unacceptable
Proposal does not meet requirements and contains one or more
deficiencies. Proposal is unawardable.

As the chart indicates, a proposal with a “deficiency” will automatically be deemed
unacceptable. Further, the agency must rate the overall technical approach “Acceptable”
or better in order to award the contract. Id. at 88.
4

The RFQ included specific requirements for the some of personnel who would be
performing the work, stating that a proposal must explain “how the offeror will meet the
objectives of the PWS, and who will be performing the work.” Id. at 89. The solicitation
required that offerors identify and include résumés for key personnel, including the
Project Manager. PWS Section 2.2, “Key Personnel Qualifications,” stated that the
Project Manager must meet the following requirements:
Project Manager. The Contractor shall designate a Project Manager (PM)
for the overall contract who provides a single Point of Contact (POC) for
the [contracting officer], provides programmatic reporting to USACE, and
can address overall management and contracting issues. This individual
shall have at least 3 years experience in general contract project
management on programs similar in size and complexity to the effort
described in this PWS. The PM shall have a Project Management
certification from an accredited institution. The resume/qualifications for
the selected PM must be submitted with the proposal. Any subsequent
change in PM must be approved by the [contracting officer].
AR 124. The RFQ provided the following additional requirements for the Project
Manager and other “Key deployed personnel”:
Key deployed personnel (Project Manager, Quality Control Manager,
Property Control Manager, and Site Safety and Health Officer) shall have 5
years minimum documented experience with 50 & 60 Hz electrical
systems. These key personnel must have a Secret Security Clearance. They
shall have a minimum of 1 year experience managing multiple teams
working in remote environments. The government will evaluate
documented experience supporting contingency or remote operations more
favorably.
AR 89.

5

B.

The Proposals

The agency received proposals from three companies: Sallyport, exp Federal (who
was the incumbent on this contract), and [xxxxx]. [xxxxx] received a “Marginal” overall
rating on its technical proposal and, because it did not receive an “Acceptable” rating or
better, was eliminated from the competition, AR 500. Sallyport and exp Federal’s
proposals, and the agency’s evaluation, are discussed below.
1.

Sallyport’s Proposal

Sallyport submitted its proposal on February 2, 2016, with a proposed total price
of $[xxxxxxxxxxxx] for the base and option periods. See id. at 278-364. Sallyport
proposed that two individuals would jointly serve as Project Manager. The first Project
Manager, James Johnston, would be working from the continental United States and the
other, Kevin June, would be working on site in CENTCOM AOR and would also serve
as the Site Safety and Health Officer. Id. at 282-88. Though the proposal stated that Mr.
June would be serving as “On-site Project Manager,” Mr. June does not have a project
manager certification as required by the PWS. Id. at 298-99 (Mr. June’s résumé); 124
(Project Manager qualifications).
On or around February 10, 2016, two Army project managers, Frederick Cartes
and Richard Locklair, conducted a technical evaluation of Sallyport’s proposal. Id. at
450. The technical evaluation reiterated the rating scheme that was identified in the RFQ
and was used to rate each of the identified tasks. Id. Sallyport received a “Good” rating
in four out of the seven tasks and an “Acceptable” rating for Task 5, “other direct costs.”
6

Id. at 462. However, in Task 2, “Electrical Assessment, Update, and Repair,” Sallyport
received an “Unacceptable” rating, thus receiving an overall “Unacceptable” rating in the
technical factor. Id. The “Unacceptable” rating was based on one “deficiency” and one
“weakness.” Id. at 459-68.
The technical evaluation determined that a “deficiency” existed in Sallyport’s
proposal as a result of its Project Manager structure:
(Deficiency) Project Manager James Johnston’s resume demonstrates all of
the requirements of PWS 2.2. The organization chart on p.5 Figure 1 shows
James Johnston color coded as a key personnel, but that he is the CONUS
Project Manager. Proposal p.3 section 1 states that Mr. June will handle
operational activities and report to Mr. Johnston on a regular basis. Figure 1
and section 1 show that the functions of the lead Project Manager are being
performed by Mr. June, however RFQ page 2 specified that the PMP
Project Manager will be forward deployed.
Id. at 460. In other words, the agency found that the RFQ required the Project Manager
to be deployed to the worksite based on the RFQ’s inclusion of the Project Manager in
the category of “Key deployed personnel.” See AR 89 (“Key deployed personnel
(Project Manager, Quality Control Manager, Property Control Manager, and Site Safety
and Health Officer) shall have 5 years minimum documented experience . . . .”).
However, under Sallyport’s proposal, Mr. Johnston, who met the PWS’s requirements
that a Project Manager have three years “experience in general contract project
management” on similar projects and “a Project Management certification from an
accredited institution,” AR 124, as well as the RFQ’s requirements all key personnel,
including the Project Manager, have the requisite electrical experience and a security
clearance, AR 89, would not be deployed. Rather, Sallyport proposed that Mr. June (who
7

met the RFQ’s technical requirements, but did not have the requisite Project Manager
certification) would be deployed as the Project Manager. Id. at 289-90. The agency
found that Sallyport’s proposal contained a deficiency because Sallyport failed to propose
deploying a Project Manager meeting all the solicitation’s requirements.
The technical evaluation also identified a “weakness” in Sallyport’s proposal
because the agency found that Sallyport had an improper contract with the agency during
a “blackout” period. Id. at 459. The solicitation instructed that:
The offeror shall NOT engage in any form of contact with installation
personnel/or Installation DPW personnel regarding this requirement prior to
submission of quotation and Task Order Award. Contact regarding the
requirements set forth in this RFQ shall only occur with the Contract
Specialist or Contracting Officer. Discussions or information obtained via
other sources could make you ineligible for award if deemed a Conflict of
Interest or a Violation of Procurement Integrity Act.
Id. at 92. In its proposal, Sallyport included a statement indicating that it had a “recent”
communication with the agency:
Based on our prior experience and recent communications with the 249th Prime
Power Engineering Battalion who has performed this work in Jordan, we
understand that grounding and bonding deficiencies are the predominant life
safety hazard we may encounter.
Id. at 287. The agency assumed that the contact occurred after the solicitation was issued
and found that the contact demonstrated a “‘Weakness’ regarding [Sallyport’s]
understanding of the Contracting Officer’s direction.” Id. at 459. However, according to
a declaration from Sallyport’s principal, David Banks, which the government does not
dispute, the meeting between Sallyport personnel and the agency occurred before the
solicitation was issued and was therefore not improper. See Decl. of David Banks ¶¶ 3-7.
8

On March 23, 2016, the Contracting Officer, John Cominotto and the Contract
Specialist, Kimberly Robinson, jointly prepared a Combined Pre-Negotiation
Memorandum/Price Negotiation Memorandum (“POM/PNM”), which included a
verbatim copy of the technical evaluation. AR 489-91. The body of the POM/PNM
identified a “deficiency” with respect to Sallyport’s proposed key Project Managers and
“weakness” with respect to the agency’s assumption that Sallyport had improper
communications with the agency. Id. at 495. However, in the concluding paragraph,
which summarized the technical evaluation, the POM/PNM document referred to two
deficiencies instead of a deficiency and a weakness. Id. at 500. The POM/PNM
concluded that Sallyport’s proposal was rated “Unacceptable” and thus ineligible for
award because it was “proposing a stateside Project Manager when the RFQ directly
stated that the Project Manager should be forward deployed in the CENTCOM AOR.”
Id. at 500-501.
2.

exp Federal’s Proposal

On February 2, 2016, exp Federal submitted its proposal which included a
proposed price of $15,695,915.30 for the base and option periods. Id. at 229-77. For its
Project Manager, exp Federal submitted the résumé of Khalil Al-Amin, which stated in
the “Education” section that Mr. Al-Amin has a “Master Certificate, 2014, Mastering
Project Management.” Id. at 249. Mr. Al-Amin’s resume also listed “additional
education in . . . Project Management (Master Certificate).” Id. The agency’s
assessment of Task 2, which included key personnel, stated that “Project Manager Khalil
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Al-Amin[’s] resume demonstrates all of the requirements of PWS 2.2 and RFQ letter
p.2.” Id. at 492. The agency assigned exp Federal a “Good” overall technical rating and
a “Good” rating on each of the subfactors except Task 5, “Other Indirect Costs,” in
which exp Federal received an “Acceptable” rating. Id. at 491. The Army determined
that exp Federal’s proposal was fair and reasonable and recommended that exp Federal
receive the award. Id. at 501. On March 31, 2016, exp Federal was awarded the
contract. Id. at 503.
C.

Sallyport’s GAO Protest

Sallyport filed a protest before the Government Accountability Office (“GAO”) on
April 25, 2016. Id. at 573. Before the GAO, Sallyport complained that it had requested a
debriefing, but had not yet received one from the agency. Id. at 575. Sallyport argued
that the agency had not explained why it had found Sallyport’s proposal unacceptable and
argued that had the agency evaluated the proposal according to the solicitation’s criteria,
including taking into account the fact that Sallyport’s proposed price was approximately
$[xxxxxxx] less than the awardee’s, Sallyport would have had a substantial likelihood of
receiving the award. Id. a 576-77. The following day, April 26, 2016, the agency filed a
notice of corrective action stating that it would provide a post-award notice as required
under FAR § 8.405-2(d). Id. at 715. Sallyport withdrew its protest on May 2, 2016. Id.
at 716.

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D.

Sallyport’s Complaint in this Court and Motion to Supplement the
Administrative Record

Sallyport filed is bid protest in this court on July 8, 2016, seeking preliminary and
permanent injunctive relief. See Compl., ECF No. 1. On July 11, 2016, counsel for the
government gave Sallyport a redacted version of the POM/PNM, which the government
argues demonstrates that Sallyport’s proposal was correctly rejected because of a
deficiency with respect to Sallyport’s proposed Project Manager. See Pl. Mot. to Supp. at
2, ECF No. 23. On July 12, 2016, the court held an initial status conference setting an
accelerated briefing schedule on the parties’ cross-motions for judgment on the
administrative record and Sallyport withdrew its request for preliminary injunctive relief.
See Scheduling Order, ECF No. 14.
On July 18, 2016, Sallyport filed its motion to supplement the administrative
record. Pl. Mot. to Supp., ECF No 23. Sallyport moved to supplement the administrative
record with respect to three issues. First, Sallyport asked the court to consider the
declaration of Sallyport’s principal, David Banks stating that the contact between Mr.
Banks and the agency was before the blackout period and therefore not improper.
Second, with respect to the agency’s finding that the solicitation did not allow Sallyport
to split the qualifications and responsibilities of a Project Manager between two
individuals, Sallyport asked the court to consider the fact that Sallyport had successfully
completed similar contracts with the same Project Manager structure it proposed in this
procurement. Third, Sallyport wished to offer evidence that the person Sallyport believed

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to be exp Federal’s proposed Project Manager did not meet the solicitation’s certification
requirements.
On July 22, 2016, the court granted Sallyport’s motion in part and denied in part.
Order, ECF No. 37. The court permitted Sallyport to supplement the record with
paragraphs 1-10 of Mr. Banks’s supplemental declaration, in which Mr. Banks stated that
his communication with the agency occurred before the blackout period. Supp. Banks.
Decl., ¶¶ 1-10, ECF No. 34-1. However, the court denied the motion to supplement with
respect to all other issues. The court found that Sallyport’s evidence that it had
performed other contracts with the agency using a two-Project Manager structure was not
relevant because the agency was not bound by its previous decisions and the relevant
question was whether the agency had reasonably interpreted the solicitation for this
procurement. See Phoenix Mgmt., Inc. v. United States, 125 Fed. Cl. 170, 178 (2016)
(denying motion to supplement with identical procurement which the agency had
corrected because it was unnecessary for judicial review); Guardian Moving & Storage
Co. v. United States, 122 Fed. Cl. 117, 132 n.6 (2015) (denying motion to supplement
with previous proposal that had been awarded the contract because the record was
sufficient for judicial review). With respect to the third issue, the record demonstrated
that Sallyport was mistaken as to the identity of exp Federal’s proposed Project Manager
and therefore supplementation not necessary.
Briefing on the parties’ cross-motions for judgment on the AR was completed on
August 30, 2016. The court held oral argument on October 27, 2016.
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II.

STANDARD OF REVIEW
The standard of review in the Administrative Procedure Act (“APA”), 5 U.S.C. §

706, governs the court’s review of an agency action in a bid protest case. See 28 U.S.C. §
1491(b)(4). The APA standard is “highly deferential” to the agency’s decision.
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000).
An agency’s action may only be set aside if it was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Palladian Partners, Inc. v. United
States, 783 F.3d 1243, 1252 (Fed. Cir. 2015) (quoting Savantage Fin. Servs. v. United
States, 595 F.3d 1282, 1285 (Fed. Cir. 2010)). In that connection, “[t]he court’s task is to
determine whether ‘(1) the procurement official’s decision lacked a rational basis; or (2)
the procurement procedure involved a violation of regulation or procedure.’” Id. (quoting
Savantage, 595 F.3d at 1285-86). The court will find that an agency’s decision is
“arbitrary and capricious when the agency ‘entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or [the decision] is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor
Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
Further, even if the court finds agency action arbitrary and capricious, the court
must also “determine, as a factual matter, if the bid protester was prejudiced by that
13

conduct” before disturbing the results of a procurement. Bannum, Inc. v. United States,
404 F.3d 1346, 1351 (Fed. Cir. 2005). In order to establish prejudice, the protester must
show that there was a “substantial chance” it would have received the award but for the
agency’s errors. Id. (citing Info. Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1318-19 (Fed. Cir. 2003)). “De minimis errors in the procurement process do not
justify relief.” Croman Corp. v. United States, 106 Fed. Cl. 198, 216 (2012), aff’d, 724
F.3d 1357 (Fed. Cir. 2013) (citing Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990,
1000 (Fed. Cir. 1996)).
III.

DISCUSSION
A.

The Agency Reasonably Determined that Sallyport’s Project Manager
Proposal was Deficient

As discussed above, Sallyport proposed two individuals to fill the Project Manager
position: Mr. Johnston, who met all of the solicitation’s requirements would be working
from the United States, and Mr. June, who did not have the required certification but
would be deployed to the Middle East. The agency concluded that Sallyport had
“propos[ed] a stateside project manager when the RFQ directly stated that the Project
Manager should be forward deployed to the CENTCOM AOR,” AR 501, and therefore
Sallyport’s proposal contained a deficiency rendering it “Unacceptable” and ineligible for
award.
Sallyport argues that the agency acted improperly when it concluded that the
solicitation required the Project Manager to be deployed. According to Sallyport, the
solicitation “did not make the concept of ‘deployment’ of a proposed Project Manager a
14

mandatory minimum requirement, it did not make it a requirement at all.” Pl.’s MJAR
12. The court disagrees with Sallyport and finds that the agency reasonably interpreted
the solicitation to find that it required a deployed Project Manager meeting all of the
solicitation’s qualification requirements. It is clear that the solicitation requires the
Project Manager to be deployed. Looking first to the language directly addressing the
Project Manager and other key personnel in the RFQ, the court finds that the solicitation
clearly contemplates a deployed Project Manager:
Key deployed personnel (Project Manager, Quality Control Manager,
Property Control Manager, and Site Safety and Health Officer) shall have 5
years minimum documented experience with 50 & 60 Hz electrical
systems. These key personnel must have a Secret Security Clearance. . . . .
AR 89 (emphasis added). The Project Manager is listed first in the category of key
“deployed” personnel that will be performing the work under the contract. As the
government notes, the natural reading of that section of the solicitation demonstrates that
the “Project Manager” is included in the category of “Key deployed personnel.” Thus,
the RFQ unambiguously required that the Project Manager be deployed.
Sallyport reads the “key personnel” language quoted above as only setting the
requirements for the key personnel if the contractor chooses to deploy that person. In
other words, the contractor is not required to deploy a Project Manager, or any other key
personnel, but if it does choose to deploy them, they must have certain specified
qualifications (such as a security clearance and electrical experience, see AR 89). The
court finds this to be a strained, unnatural reading of the solicitation’s language. In
addition, Sallyport’s reasoning would mean that deploying any key personnel was
15

optional, including those who must necessarily be on site to do their jobs such as the
Property Control Manager and the Site Safety and Health Officer.
Moreover, the solicitation’s language read in context of the solicitation as a whole,
see Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1354 (Fed. Cir. 2004),
confirms that the solicitation contemplated that the Project Manager would be deployed.
The Project Manager acts as the “single Point of Contact (POC) for the KO, provides
programmatic reporting to USACE, and can address overall management and contracting
issues.” Id. at 124. In addition, the Project Manager, and all “Key deployed personnel,”
are required to have “a minimum of 1 year experience managing multiple teams working
in remote environments.” Id. at 89. These specifications demonstrate that the Project
Manager must be deployed to the work site to be effective. Other provisions in the
solicitation further support the conclusion that the Project Manager has to be deployed.
For example, the solicitation stated that the Project Manager is “authorized a vehicle” and
a satellite phone to insure that required tasks are performed, both of which would be
unnecessary if the work could be performed from the United States. Id. at 130, 133. In
addition, the solicitation stated that after the award, the Army would hold a “[k]ick-off
meeting” to “brief key personnel” which would take place via video teleconference at
“key locations, prior to personnel pushing from hubs [i.e., Kuwait and Jordan] to the
work areas.” Id. at 132 (kick-off meeting requirement); id. at 125 (defining hub).
Sallyport argues that, even if the solicitation required the Project Manager to be
deployed, Sallyport’s proposal met that requirement by proposing that Mr. June serve as
16

the deployed Project Manager. In effect, Sallyport is arguing that two individuals, neither
of which meets all of the solicitation’s requirements independently, can satisfy the terms
of the solicitation when combined together. Sallyport notes that the PWS and the RFQ
contain different descriptions for the Project Manager, with the RFQ detailing the
required technical experience, see AR 89 (key personnel, including Project Manager must
have “5 years minimum documented experience with 50 & 60 Hz electrical systems”),
and the PWS discussing the managerial requirements (Project Manager “shall have at
least 3 years experience in general contract project management on programs similar in
size and complexity” and a “Project Manager certification from an accredited
institution”). Sallyport argues that the “two distinct skill sets described in the RFQ and
PWS contemplate that offerors can best meet the Agency’s needs by proposing two
individuals to meet the requirements of the solicitation.” Pl.’s MJAR 22.
The court disagrees and finds that the solicitation plainly required that a single
individual meet all the solicitation’s requirements, including the deployment requirement,
to serve as the Project Manager. The fact that the solicitation contains two sets of
requirements for the Project Manager does not imply that solicitation contemplated two
individuals would fill that position. While the RFQ sets forth the high-level requirements
for all key personnel, i.e. the Project Manager, Quality Control Manager, Property
Control Manager, and Site Safety and Health Officer must have a security clearance and
electrical experience, the PWS contains additional requirements specific to each of the
four positions. Rather than implying that the requirements for any of these positions can
17

be split amongst two people, the solicitation contemplates that an individual proposed for
each position must meet the requirements in both the PWS and the RFQ.
Sallyport also argues that a dual Project Manager structure was allowable because
the solicitation contemplated that another position, the Site Safety and Health Officer,
could be filled by an individual also acting as the Project Manager. See AR 124
(“Individual Site Safety and Health Officer need not be a full time responsibility. This
position can be dual hatted with one other key personnel position.”). However, the court
finds that the fact that a Project Manager was also permitted to serve as the Site Safety
and Health Officer has no bearing on the question of whether multiple individuals could
jointly act as Project Manager. As the government notes, the solicitation refers to the
Project Manager using singular pronouns, adjectives, and verbs:
Project Manager. The Contractor shall designate a Project Manager (PM)
for the overall contract who provides a single Point of Contact (POC) for
the KO, provides programmatic reporting to USACE, and can address
overall management and contracting issues. This individual shall have at
least 3 years experience in general contract project management on
programs similar in size and complexity to the effort described in this PWS.
The PM shall have a Project Management certification from an accredited
institution. The resume/qualifications for the selected PM must be
submitted with the proposal. Any subsequent change in PM must be
approved by the KO.
AR 124 (emphasis added). In addition to the solicitation’s grammatical implication that
the Project Manager is to be one person, the solicitation specifically refers to the Project
Manager as a “single Point of Contact” with the agency. Id. This characterization
demonstrates the agency’s determination that communication with the contractor would

18

be most efficient if streamlined through one previously-identified individual meeting all
of the solicitation’s requirements.
Finally, Sallyport argues the agency acted arbitrarily and capriciously in finding
that a deployed Project Manager was a mandatory requirement and could thus give rise to
a “deficiency” under the terms of the solicitation. The solicitation stated that if a
proposal “does not meet the requirements and contains one or more deficiencies,” the
“[p]roposal is unawardable” and will be deemed “unacceptable.” AR 89 (emphasis
added). Sallyport cites case law stating that a “mandatory minimum requirement must be
clearly identified as such within the solicitation so as to ‘put offerors on notice’ of the
serious consequences of failing to meet the requirement.” ManTech Telecomms. & Info.
Sys. Corp. v. United States, 49 Fed. Cl. 57, 67 (2001), aff’d, 30 F. App’x 995 (Fed. Cir.
2002) (quoting Isratex, Inc. v. United States, 25 Cl. Ct. 223, 229 (1992). 2 According to
Sallyport, the agency erred in finding a “deficiency” because the solicitation did not put it
on notice that the deployment requirement would be treated as a disqualifying. Sallyport
argues that when the solicitation created mandatory requirements, it used clearly
mandatory language, i.e., the Project Manager “shall have at least 3 years experience in
general contract project management.” AR 124 (emphasis added). Sallyport argues that
because the solicitation did not state that the Project Manager “shall” be deployed,
2

Sallyport also argues that the agency acted unreasonably in making a deployed Project Manager
a mandatory requirement because Sallyport had previously performed contracts with the agency
in remote locations using a Project Manager working remotely from the United States. However,
as discussed above, the court has already denied Sallyport’s motion to supplement the
administrative record with respect to this issue.
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Sallyport it did not understand that deployment of the Project Manager was a mandatory
requirement.
The court finds that Sallyport's arguments are without merit. As discussed at
length above, the solicitation clearly required offerors to identify a single Project
Manager meeting all the solicitation’s requirements as one of the key personnel to be
deployed. Given the plain language of the solicitation, the court finds that Sallyport was
on notice that deployment of a Project Manager was a mandatory requirement.
Moreover, to the extent Sallyport had any question about whether the Project Manager
needed to be deployed, the RFQ gave Sallyport an opportunity to ask questions to the
contracting officer “regarding the requirements set forth in this RFQ.” Id. at 92. It is
simply too late for Sallyport to now question the requirements in the RFQ. 3
Accordingly, for all of the above stated reasons, the court finds that the record
supports the agency’s finding that Sallyport’s proposed Project Manager structure was a
deficiency rendering Sallyport’s proposal unacceptable.

3

The government argues that, to the extent that Sallyport is arguing that the requirement was
ambiguous, any ambiguity was patent and thus Sallyport waived its right to challenge the
deployment requirement by failing to challenge the requirement before proposals were
submitted. See Blue & Gold Fleet, LP v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007)
(finding that “a party who has the opportunity to object to the terms of a government solicitation
containing a patent error and fails to do so prior to the close of the bidding process waives its
ability to raise the same objection afterwards in a § 1491(b) action in the Court of Federal
Claims.”). While the court finds that the solicitation was not ambiguous, to the extent Sallyport
was confused as to whether deployment of the Project Manager was mandatory because the
agency did not use the term “shall,” that issue was clear from the face of the solicitation and
because it was not hidden it had to be raised at the proper time either before the agency or court.
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B.

The Agency’s Treatment of Sallyport’s Alleged Improper Contact did
not Impact the Outcome of the Procurement

As discussed above, the agency gave Sallyport’s proposal a “weakness” because
the agency believed, based upon a statement in Sallyport’s proposal that Sallyport
employees had “recent” communication with the agency, that Sallyport had improperly
contacted the agency during the blackout period where no contact between the agency
and the bidders was permitted. See AR 459. The court allowed Sallyport to supplement
the administrative record with the declaration of Mr. Banks stating that the contact
between Mr. Banks and the agency was before the blackout period and therefore not
improper. The agency does not challenge Sallyport’s sworn testimony that the contact
actually came before the blackout period, but maintains that the agency nevertheless
acted reasonably in interpreting the word “recent” to mean the contact occurred during
the approximately two-week blackout period after the solicitation was issued and before
proposals were due.
The court finds that the agency’s assumption was arbitrary and capricious. In its
proposal, Sallyport stated that:
Based on our prior experience and recent communications with the 249th
Prime Power Engineering Battalion who has performed this work in Jordan,
we understand that grounding and bonding deficiencies are the predominant
life safety hazard we may encounter.
AR 287. In the technical evaluation, the agency found, based on that sentence, that:
Sallyport contacted the 249th prime power, but did not request or receive
authorization from the Contract Specialist or Contracting Officer to obtain
information pertaining to this RFQ. This demonstrates a “Weakness”
21

regarding the company’s understanding of the Contracting Officer’s
direction.
Id. at 459. According to Mr. Banks’s declaration, Sallyport’s representative actually met
with the contracting officer on May 26, 2016. See Banks Decl. ¶¶ 4-6. The court finds
that agency acted unreasonably in assuming, without seeking any confirmation from
within the agency itself, that the “recent” communication had occurred within the twoweek blackout period and not before.
However, the court finds that the agency’s error here did not have an impact on the
outcome of the procurement and thus did not prejudice the plaintiff. 4 The court has
found that the agency acted within its discretion when it identified a deficiency based
upon Sallyport’s failure to propose a deployed Project Manager meeting all of the
solicitation’s requirements. This deficiency by itself was sufficient grounds for the
agency to eliminate Sallyport from the competition. See AR 89 (stating that if the
proposal “does not meet the requirements and contains one or more deficiencies,” the
“[p]roposal is unawardable” and will be deemed “unacceptable”) (emphasis added). 5

4

Sallyport argues that had it improperly been in contact with the agency, presumably to attempt
to obtain information not available to other competitors, the contracting officer would have been
required to report the matter. See generally FAR § 3.104-7(a) and (b). In this case, no such
report was made. However, because the court finds there was no effect on the outcome of the
case, the court need not decide if this section applies.
5

The technical evaluation refers to the alleged improper contact as a “weakness.” AR 459.
However, the POM/PNM memorandum describes the contact as a “weakness” in the body of the
document while specifically discussing the issue, id. at 495, but refers to the contact as a
“deficiency” in the conclusion, see id. at 500-01 (“Sallyport’s Technical proposal was rated
unacceptable for two deficiencies.”). The government conceded that the POM/PNM’s statement
that there were two deficiencies was an error and that the record supports one deficiency and one
weakness. Def.’s MJAR at 12 n.3. However, because one deficiency was sufficient to eliminate
22

Because Sallyport has not demonstrated that it had a “substantial chance” that it would
have been awarded the contract but for the agency’s error, Sallyport has not demonstrated
prejudice from that error and therefore has not met its burden of showing that the award
should be set aside.
C.

The Agency Reasonably Evaluated exp Federal’s Proposal

In addition to arguing that the agency was arbitrary and capricious in giving
Sallyport’s proposal a deficiency, Sallyport argues that the agency erred in its evaluation
of exp Federal’s proposal, which, according to Sallyport, should have been found
deficient. As discussed above, the court has found that the agency’s determination that
Sallyport’s proposal contained a deficiency was supported by the record in this case. The
government argues that the court’s inquiry should end there because Sallyport was
correctly found to have submitted an unacceptable proposal and thus lacks standing
because it would not have received the award even if the agency incorrectly evaluated
exp Federal. The court disagrees. If the court finds the agency should have found that all
three bidders submitted unacceptable proposals, 6 then the court would have to remand to
the agency to either repeat the bidding process or for further negotiations. See Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir.

a competitor, this court finds that the error in the POM/PNM was harmless. Sallyport argues that
referring to the alleged contact as a “deficiency” demonstrates that the agency was unfairly harsh
in evaluating Sallyport’s proposal. The court finds that this was simply an error in the
conclusion of the POM/PNM, which refers to the contact as a “weakness” elsewhere in the
document, and not evidence of the agency’s bias.
6

No party disputes that the third bidder, [xxx] was correctly assigned a lower-than-acceptable
rating on its technical proposal, see AR 500.
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2001). The Federal Circuit has found that a protestor has demonstrated prejudice in such
circumstances. See Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353,
1360 (Fed. Cir. 2015). The court will therefore turn to Sallyport’s arguments regarding
exp Federal’s proposal.
Sallyport argues that exp Federal’s proposed Project Manager, Khalil Al-Amin,
does not meet the solicitation’s requirement that a Project Manager have a project
management certification. The PWS states that the Project Manager “shall have a Project
Management certification from an accredited institution.” AR 124. Mr. Al-Amin’s
résumé in exp Federal’s proposal states that Mr. Al-Amin has a “Master Certificate,
2014, Mastering Project Management” and that he has “additional education in . . .
Project Management (Master Certificate).” AR 249. Sallyport states that “[i]nformation
that Mr. Al-Amin has published publically about himself states that his certificate was
issued by Villanova University.” Pl.’s MJAR 30. According to Sallyport, “[a] Project
Manager ‘Master Certificate’ is not remotely the same as a “Project Management
certification from an accredited institution.” Id. Sallyport asserts that “a Project
Management certificate program” at a university “merely prepares an individual to
complete the Project Management certification process.” Id. at 31. Sallyport asserts that
universities, including Villanova, provide training to prepare individuals for certification
exams, almost exclusively the Program Management Institute’s (‘PMI’) Project
Management Professional (‘PMP’) certification exam,” though Sallyport does identify

24

two other small international organizations that it also could also provide the type of
“certification” required by the solicitation. Id.
The government and defendant-intervenor argue, and the court agrees, that
Sallyport’s arguments regarding the distinction between a certificate and a certification in
project management relies on evidence outside of the administrative record. The
solicitation does not require a specific type of certification, stating only that the
certification must come from “an accredited institution.” AR 124. In contrast, on the
same page as the certification requirement for the Project Manager, the solicitation states
that bidders must include at least two Master Electricians in their proposals who are
either licensed as Master Electricians by a state or have a “Level 4 NVQ Diploma in
Installing Electro Technical Systems and Equipment from an accredited organization
registered with the Office of Qualifications and Examinations regulation in the United
Kingdom.” Id. at 124-25. In addition, the solicitation requires that the proposed Property
Control Manager be a “Certified Professional Property Administrator (CPPA)” and states
that a “Certified Professional Property Manager (CPPM) is preferred.” Id. at 124. These
provisions demonstrate that had the agency intended the proposed Project Manager to
hold a specific type of certification from one of a very small number of certifying
organizations, it would have said so.
Moreover, the agency’s interpretation of “certification” to include the certificate
held by Mr. Al-Amin is supported by the language of the solicitation, which appears to
use the terms “certificate” and “certification” interchangeably. The PWS states that
25

“[p]rior to mobilizing any personnel, all required certificates/licenses shall be filed with
the KO and reviewed by the COR. These certificates/licenses shall provide sufficient
confirmation that the minimum standards are met for each individual proposed to be sent
forward or assigned to the project for support from Continental United Sates (CONUS).”
Id. at 122 (emphasis added). The words “certificates/licenses” in that section plainly
include the required “certification” for the Project Manager described in the same
document. The court agrees with the defendants that the agency reasonably interpreted
the term “certification” to include the “Master Certificate” in project management listed
in Mr. Al-Amin’s résumé. Accordingly, the court finds that Sallyport has not met its
burden to show that it was unreasonable, arbitrary, or capricious for the agency to
determine that the “Master Certificate, 2014, Mastering Project Management” listed in
Mr. Al-Amin’s résumé, id. at 249, satisfied the solicitation’s requirement that a proposed
Project Manager have a “Project Management certification from an accredited
institution.” Id. at 124.
IV.

CONCLUSION
For the reasons stated above, the Sallyport’s motion for judgment on the

administrative record is DENIED. Further, Sallyport’s request for injunctive relief is
DENIED. The government and exp Federal’s motions for judgment on the
administrative record are GRANTED. The clerk is instructed to enter judgment
accordingly. No costs.
IT IS SO ORDERED.
26

s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge

27