PAE-PARSONS GLOBAL LOGISTICS SERVICES, LLC v. USA

Filing 80

REPORTED OPINION reissuing 78 SEALED OPINION and ORDER. Signed by Senior Judge Loren A. Smith. (sm) Service on parties made.

In the United States Court of Federal Claims
Nos. 19-1205, 19-1515 (consolidated)
Filed: February 20, 2020
Reissued: March 11, 20201

PAE-PARSONS GLOBAL LOGISTICS
SERVICES, LLC,
Plaintiffs,
v.
THE UNITED STATES,
Defendant
and
FLUOR INTERCONTINENTAL, INC.,
Defendant-Intervenor.

PAE-PARSONS GLOBAL LOGISTICS
SERVICES, LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant
and
VECTRUS SYSTEMS CORPORATION,
Defendant-Intervenor.

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Post-Award Bid Protest; Judgment on
the Administrative Record; RCFC 52.1;
Motion to Dismiss; RCFC 12(b)(1);
Tucker Act; Jurisdiction; Multiple
Award Task Order Contract;
Indefinite-Delivery Indefinite-Quantity
Contract; Task Order Contract; Task
Order; Federal Acquisition
Streamlining Act; Administrative
Procedure Act; Technical/Management
Approach; Labor Staffing Model;
Disparate Treatment.

An unredacted version of this opinion was issued under seal on February 20, 2020. The
parties were given an opportunity to propose redactions, but no such proposals were made.

Anuj Vohra, Crowell & Moring LLP, Washington, DC, counsel for plaintiff.
Robert Ralph Kiepura, U.S. Department of Justice, Civil Division, Washington, DC, counsel for
defendant.
Andrew Emil Shipley, Wilmer Cutler, et al., LLP, Washington, DC, counsel for
defendant-intervenor, Fluor Intercontinental. Kevin Mullen, Morrison & Foerster, LLP,
Washington, DC, counsel for defendant-intervenor, Vectrus Systems Corporation.

OPINION AND ORDER

SMITH, Senior Judge

The central purpose of federal procurement law is to ensure that competition for
government contracts, which are funded by tax payer dollars, is fair to both the government and
to contractors. Only when competition is fair and open can the government get what it pays for,
and can the contractor receive fair value for the work and goods it provides. If the system is not
fair, the tax payer will be cheated, and honest contractors will be unwilling to contract with the
government. Accordingly, procurement law is designed to insure against corruption of the
process, be it through bribery, government favoritism, or poor management of the procurement
processes. The law in turn provides disappointed bidders with an avenue through which they can
challenge arbitrary and irrational government decisions, where disappointed bidders effectively
act as “private attorney generals,” keeping the system under perpetual scrutiny, ferreting out
mistakes, and bringing to light bad government practices that impact their chances of receiving
contract awards. This the creates an effective system by which disappointed bidders keep in
check the natural human tendency to award contracts based on favoritism. So far, the system has
worked rather effectively, though of course, any effectively run system has its associated costs.
Congress has, however, decided that the cost of expensive bid protest litigation is less than the
cost of a corrupt or irrational decision-making process dealing with tens of billions of dollars.
As such, the Court must understand the broad purposes behind procurement law to effectively
handle procurement cases. The close scrutiny of disappointed bidders is balanced out by the
deference afforded to Agencies. We must remember that it is the agencies that have the
authority, bestowed upon them by Congress and the President, to manage the procurement
system. The Court’s role is to ensure fair and rational review by the agency in following the law
in its decision-making processes.
In this case, as well as the other cases related to Request for Proposal No.
W52P1J-16-R-0001 (“RFP” or “Solicitation”), the six offerors spent many months and a large
amount of money developing their proposals. In general, the evaluation process worked well.
However, perhaps as a result of the inherent subjectivity and discretion in government
contracting, a number of procurement ambiguities led to this extensive and expensive litigation.
The weight afforded by the United States Department of the Army (“Agency” or “Army”) to
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each of the four evaluation factors led to many of the alleged issues currently in dispute. The
Solicitation prescribed the following evaluation factors, listed in descending order of priority: (1)
Technical/Management Approach; (2) Past Performance; (3) Small Business Participation; and
(4) Cost/Price. Administrative Record (hereinafter “AR”) 2624. The ultimate award decisions
confirm what the Solicitation stated—that the Technical/Management Approach was not just the
most important factor, but that it was overwhelmingly more important than the other three
factors. While the Agency’s emphasis on the Technical/Management Approach was neither
arbitrary nor capricious, the Court believes the uncertain level of priority afforded that factor
played a significant role in each offeror’s decision to litigate this procurement, as did, of course,
the huge amount of money at stake.
A final point. This litigation involves contracts worth up to $82 billion for work to be
performed over the next decade. While the Court detailed the reasons it has jurisdiction over
these protests in PAE-Parsons Global Logistics Services, LLC v. United States, 145 Fed. Cl. 194
(2019), and in a later section of this Opinion, the Court finds that each of the protests related to
this procurement concern disputes over the evaluation of offerors for the award of
Indefinite-Delivery Indefinite-Quantity (“IDIQ”) contracts, not disputes related to future task
orders. To hold that this Court lacks jurisdiction over this massive IDIQ procurement would
effectively gut a significant part of federal procurement law by using the Federal Acquisition
Streamlining Act of 1994 (“FASA”), 10 U.S.C. § 2304c(e)(1) (2018), to nullify a broad area of
contract scrutiny. This misuse of FASA would not streamline the procurement and protest
process, but, rather, would eliminate a significant part of it, directly contradicting the legislative
intent behind both FASA and the Competition in Contracting Act.
This post-award bid protest comes before the Court on the parties’ Cross-Motions for
Judgment on the Administrative Record. Plaintiff, PAE-Parsons Global Logistics Services, LLC
(“P2GLS”), challenges the decision of the Army to award IDIQ contracts to
defendant-intervenors, Fluor Intercontinental, Inc. (“Fluor”) and Vectrus Systems Corporation
(“Vectrus”). See generally Plaintiff’s Motion for Judgment on the Administrative Record
(hereinafter “Pl.’s MJAR”).2 Plaintiff asks the Court to determine the following: (1) “[w]hether
the Army’s evaluation was inconsistent with the RFP’s express terms where the Army assigned
elevated risk to P2GLS’[s] proposal despite assigning no weaknesses”; (2) “[w]hether the Army
erred by treating its concern with P2GLS’[s] [Labor Staffing Model (“LSM”)] as a de facto
weakness that it failed to raise in discussions, rendering discussions misleading and not
meaningful”; (3) “[w]hether the Army’s criticism of P2GLS’[s] LSM was arbitrary and
unsupported, and disparate as compared to the Army’s treatment of Vectrus’[s] LSM”; (4)
“[w]hether the [Source Selection Authority (“SSA”)]’s AFRICOM and PACOM award decisions
were arbitrary and capricious where [she] placed an inordinate amount of weight on offerors’
LSMs while ignoring nearly every other evaluation factor, and in the case of AFRICOM,
rejecting the [Source Selection Advisory Committee (“SSAC”)]’s award recommendation
without explanation.” Id. at 4–5. For the reasons set forth below, plaintiff’s Motion for

As the cases have been consolidated, citations to filings on behalf of the parties or to the
docket in this Opinion and Order refer to filings or docket entries under PAE-Parsons Global
Logistics Services, LLC v. United States, No. 19-1205, unless the Court indicates otherwise.
2

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Judgment on the Administrative Record is denied, and defendant and defendant-intervenors’
Cross-Motions for Judgment on the Administrative Record are granted.
I.

Background
A. Solicitation

On November 20, 2017, the Army issued the Solicitation for the Logistics Civil
Augmentation Program (“LOGCAP”) V contract for logistics support services. Administrative
Record (hereinafter “AR”) 2510–11.3 These support services include “supply operations,
transportation services, engineering services, base camp services, and other logistics and
sustainment support services.” AR 130447. The Solicitation contemplated the award of four to
six IDIQ contracts and associated task orders for LOGCAP V services covering the six
Geographic Combatant Commands (“COCOMs”) and Afghanistan. AR 2511–12. The
Solicitation further separated the COCOMs into the following three “Operational Priority
Groupings”: (1) European Command (“EUCOM”) and Pacific Command (“PACOM”) regions;
(2) Central Command (“CENTCOM”), Northern Command (“NORTHCOM”), African
Command (“AFRICOM”), and Southern Command (“SOUTHCOM”) regions; and (3) the
Afghanistan region. AR 2511, 2624. Contracts and corresponding task orders would be
awarded in descending order of priority according to which offeror was determined to provide
the best value for a particular COCOM region, and an awardee could only receive one award in
each Operational Priority Grouping. AR 2624–25. The Afghanistan task order could not be
awarded independently, but instead was awarded as a task order to one of the LOGCAP V
awardees that did not receive the CENTCOM award. Id.
The Solicitation provided that the regional task orders for each COCOM and Afghanistan
were to be awarded simultaneously with the IDIQ contracts. AR 2511, 2624. The Solicitation
further stipulated that the awards would be made on a best-value basis according to the following
four factors, listed in descending order of importance: (1) Technical/Management; (2) Past
Performance; (3) Small Business Participation; and (4) Cost/Price. AR 2624. Under the
Technical/Management Factor, offerors were evaluated based on their respective “Regional
Capabilities in Support of Setting and Surging the Theater and Initial Service Support of Army
Deployment,” and “Management Approach, Key Initiatives, and [LSM].” AR 2614–15.

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The Administrative Record in Case No. 19-1205 was filed on October 2, 2019, and was
limited to protest issues concerning the Agency’s contract award to Fluor. PAE-Parsons Glob.
Logistics Servs., LLC v. United States, No. 19-1205 (hereinafter “PAE I”). The Administrative
Record in Case No. 19-1515 was filed on October 7, 2019, and was limited to protest issues
related to the Agency’s contract award to Vectrus. PAE-Parsons Glob. Logistics Servs., LLC, v.
United States, No. 19-1515 (hereinafter “PAE II”). The Court consolidated both cases under
Case No. 19-1205 on October 8, 2019. See PAE I, Order Consolidating Case, ECF No. 54. As
the Court received both portions of the Administrative Record prior to its Orders consolidating
these cases, citations to the Administrative Record in this Opinion are to the integrated and
contiguous Administrative Records pulled from both cases, which mirror one another except for
certain case-specific Administrative Record Tabs and page ranges.
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For the Technical/Management Factor, offerors received separate adjectival ratings for
each COCOM and Afghanistan based on LOGCAP risk areas, including responsiveness,
affordability, transparency, predictability, capability, accountability, and flexibility. AR 2614.
Relevant here, the Army outlined the requirements for an “Outstanding” or a “Good” adjectival
rating. AR 2627. A proposal would be deemed “Outstanding” when it “indicates an exceptional
approach and understanding of the requirements and contains multiple strengths, and risk of
unsuccessful performance is low.” Id. A proposal would be considered “Good” when it
“indicates a thorough approach and understanding of the requirements and contains at least one
strength, and risk of unsuccessful performance is low to moderate.” Id.
While the Army did not officially issue independent risk ratings, it could consider the risk
of unsuccessful performance when assigning adjectival ratings. Id. A “Low” risk of
unsuccessful performance existed for proposals that “may contain weakness(es) which have little
potential to cause disruption of schedule, increased cost or degradation of performance. Normal
contractor effort and normal Government monitoring will likely be able to overcome any
difficulties.” Id. A “Moderate” risk of unsuccessful performance existed when a proposal
“contains a significant weakness or combination of weaknesses which may potentially cause
disruption of schedule, increased cost or degradation of performance. Special contractor
emphasis and close Government monitoring will likely be able to overcome difficulties.” Id.
The Army evaluated LSMs for “consistency, scalability, and adjustability” across the
“broad range of requirements” of the LOGCAP V contracts and considered the “quality and
soundness of the supporting rationale utilized to develop the [LSM].” AR 2627. The LSM
served as a baseline proposal for the offeror’s “labor staffing mix (supervision, skilled trade,
laborer, etc.), types (job description, labor category, etc. [sic]), and quantities.” AR 2616.
Utilizing the LSM, offerors developed separate Labor Staffing Approaches, specific to the
unique requirements of each COCOM and Afghanistan. Id. The Solicitation also required that
offerors provide a Labor Staffing Model Supporting Rationale, which included the identification
of the source of data, formulas, and reasoning behind any adjustments made to the proposed
LSM. Id. The Solicitation mandated that justifications “should not be so general that it isnt [sic]
possible to determine how the proposed types or quantities were developed” and required that,
when resource estimates were based on past experience, offerors must identify those experiences
and explain the formula for and rationale behind any adjustments. Id.
In evaluating Past Performance, the Agency analyzed an offeror’s previous completion of
projects with similar requirements to those of the LOGCAP V procurement. Id. Past
Performance was rated adjectively, ranging from “Substantial Confidence” to “No Confidence.”
AR 2628. In analyzing Small Business Participation, the Army looked at the extent to which
each proposal demonstrated a commitment to providing opportunities for small business
involvement. Id. Offerors received one adjectival rating for their Past Performance Factor, and a
single rating for their Small Business Participation. AR 2624. The Army would evaluate the
Cost/Price Factor by analyzing each proposal’s Cost-Plus-Fixed-Fee Contract Line Item
Numbers (“CLINs”) for reasonableness and realism and each proposal’s Firm-Fixed Price
CLINs for reasonableness. AR 2629. Each COCOM and Afghanistan received its own
Cost/Price evaluation. Id.

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B. Evaluation
The Army evaluated the Technical/Management factor in accordance with Section
M.8.4.a(i–ii) of the RFP. AR 2626–27. The Solicitation instructed each offeror to “describe its
processes or procedures through the use of any tools, reports, communications, or other unique
approaches in meeting LOGCAP objectives” in their LSM rationale. AR 2626. Further, the RFP
noted that emphasis
will be placed on [the] Offerors[’] ability, based on the uniqueness of approach, to
collect, package, and deliver actionable information to the Government, resulting
in deliverables under this contract. The approach will be evaluated on how it
addresses complexities of providing services during all phases: start-up operations;
adjustment of services (i.e., adding/removing services, adding/removing
workload); and drawdown of operations.
Id. The Army would also evaluate “the feasibility and confidence in the Offerors[’] [LSM] and
Approach.” AR 2627. Moreover, “[t]he confidence evaluation will consider the quality and
soundness of the supporting rationale utilized to develop the [LSM] and Approach.” Id.
In its comparative analysis, the SSAC recommended P2GLS over Fluor for the
AFRICOM award because the Agency determined P2GLS was less expensive, and because the
SSAC found “P2GLS’[s] non-price proposal equalized with that of Fluor when considering
P2GLS’[s] superior confidence rating in Past Performance and superior adjectival rating in
Small-Business Participation compared to Fluor’s superior adjectival rating [for its]
Technical/Management [Approach].” AR 70477. Though the SSAC assigned Fluor’s proposal
strengths for its LSM, it determined that P2GLS’s proposal did not contain the same strengths.
AR 70476–77. The SSAC recommended Vectrus receive PACOM because its LSM contained a
strength for its Final Proposal Revision (“FPR”), while P2GLS’s FPR was absent that same
strength. AR 70472–73.
The Agency assigned P2GLS and Fluor the following ratings for the AFRICOM region:
AFRICOM
P2GLS
Fluor

Technical/
Management
Good
Outstanding

Past
Performance
Substantial
Satisfactory

Small Business
Participation
Outstanding
Good

Total Evaluated
Price
$126,507,558.85
$137,222,537.90

See AR 70627. For the PACOM region, the Agency assigned P2GLS and Vectrus the following
ratings:
PACOM
P2GLS
Vectrus

Technical/
Management
Good
Outstanding

Past
Performance
Substantial
Substantial

6

Small Business
Participation
Outstanding
Good

Total Evaluated
Price
$304,425,024.86
$349,187,574.26

See AR 70620. Based on its best value analysis, on April 12, 2019, the Army awarded four IDIQ
contracts, one each to KBR, Vectrus, Fluor, and P2GLS. See generally AR 70776–82. Of
relevance, the Army awarded AFRICOM to Fluor and PACOM to Vectrus. AR 70777
(PACOM), AR 70780 (AFRICOM).
C. Procedural History
On August 14, 2019, plaintiff filed its first Complaint with this Court, claiming that the
Army improperly awarded Fluor the AFRICOM IDIQ contract. See generally Plaintiff’s
Complaint (hereinafter “Compl.”), PAE-Parsons Glob. Logistics Servs., LLC v. United States,
No. 19-1205 (hereinafter “PAE I”). On August 21, 2019, defendant filed a motion to dismiss
that Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which
relief can be granted. See generally PAE I, Defendant’s Motion to Dismiss, ECF No. 31. On
September 24, 2019, the Court denied defendant’s Motion to Dismiss. PAE-Parsons Glob.
Logistics Servs., LLC v. United States, 145 Fed. Cl. 194, 200 (2019). On October 1, 2019,
P2GLS filed a second complaint, alleging that the Army improperly awarded PACOM to
Vectrus. See generally Compl., PAE-Parsons Glob. Logistics Servs. v. United States, No. 191515 (hereinafter “PAE II”). On October 8, 2019, this Court ordered the consolidation of both
cases due to the closely related nature of the issues. See PAE I, Order Consolidating Case, ECF
No. 54.
On October 17, 2019, plaintiff filed its Motion for Judgment on the Administrative
Record. See generally Pl.’s MJAR. On October 29, 2019, defendant and defendant-intervenors
filed their respective Cross-Motions for Judgment on the Administrative Record. See generally
Defendant’s Partial Motion to Dismiss, Cross-Motion for Judgment upon the Administrative
Record, and Opposition to Plaintiff’s Motion for Judgment upon the Administrative Record
(hereinafter “Def.’s CMJAR”); Vectrus Systems Corporation’s Cross-Motion for Judgment on
the Administrative Record; Fluor Intercontinental, Inc.’s Cross-Motion for Judgment on the
Administrative Record and Response to P2GLS’ Motion for Judgment on the Administrative
Record (hereinafter “Fluor’s CMJAR”). Plaintiff filed its Reply in Support of its Motion for
Judgment on the Administrative Record and Response to defendant and defendant-intervenors’
Cross-Motions for Judgment on the Administrative Record on November 4, 2019. See generally
Plaintiff’s Reply in Support of Its Motion for Judgment on the Administrative Record and
Response to Defendants’ Cross-Motions for Judgment on the Administrative Record. Defendant
and defendant-intervenors filed their respective Replies in Support of their Cross-Motions for
Judgment on the Administrative Record on November 8, 2019. See generally Defendant’s Reply
in Support of Its Motion to Dismiss and Cross-Motion for Judgment upon the Administrative
Record; Vectrus Systems Corporation’s Reply in Support of Its Cross-Motion for Judgment on
the Administrative Record; Fluor Intercontinental, Inc.’s Reply in Support of Cross-Motion for
Judgment on the Administrative Record. The Court held oral argument on November 13, 2019.
This case is fully briefed and ripe for review.
II.

Standard of Review

This Court has jurisdiction over bid protests in accordance with the Tucker Act. See 28
U.S.C. § 1491(b) (2018). Specifically, this Court has the authority
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to render judgment on an action by an interested party objecting to a solicitation by
a Federal agency for bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.
Id. This authority exists “without regard to whether suit is instituted before or after the contract
is awarded.” Id.
Pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”), a party may
file a motion for judgment on the administrative record for the Court to determine whether an
administrative body, given all disputed and undisputed facts in the record, acted in compliance
with the legal standards governing the decision under review. RCFC 52.1; see also Supreme
Foodservice GmbH v. United States, 109 Fed. Cl. 369, 382 (2013) (citing Fort Carson Support
Servs. v. United States, 71 Fed. Cl. 571, 585 (2006)). On a motion for judgment on the
administrative record, the parties are limited to the Administrative Record, and the Court must
make findings of fact as if it were conducting a trial on a paper record. RCFC 52.1; Bannum,
Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005). The Court will then determine
whether a party has met its burden of proof based on the evidence in that record. Bannum, 404
F.3d at 1355.
To succeed on a claim that an agency’s decision violates a statute, regulation, or
procedure, the protestor must show that such alleged violation was “clear and prejudicial.”
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir.
2001) (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)). In
reviewing a protestor’s claims, the Court cannot substitute its judgment for that of an agency,
even if reasonable minds could reach differing conclusions. Bowman Transp., Inc. v. Ark.-Best
Freight Sys., Inc., 419 U.S. 281, 285–86 (1974); Honeywell, Inc. v. United States, 870 F.2d 644,
648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir.
1971)) (Where the Court “finds a reasonable basis for [an] agency’s action, the [C]ourt should
stay its hand even though it might, as an original proposition, have reached a different conclusion
as to the proper administration and application of the procurement regulations.”). Accordingly,
the Court will “interfere with the government procurement process ‘only in extremely limited
circumstances.’” EP Prods., Inc. v. United States, 63 Fed. Cl. 220, 223 (2004) (quoting CACI,
Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1983)).
This Court reviews bid protests in accordance with the standards set forth in the
Administrative Procedure Act (“APA”). 5 U.S.C. § 706 (2018); Axiom Res. Mgmt. v. United
States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (citing Impresa, 238 F.3d at 1332). Agency
procurement actions may be set aside only if they are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 28 U.S.C. § 1491(b)(4). That highly
deferential standard exists in large part because agencies, and contracting officers in particular,
are “entitled to exercise discretion upon a broad range of issues confronting them in the
procurement process.” See Savantage Fin. Servs. v. United States, 595 F.3d 1282, 1286 (Fed.
Cir. 2010) (quoting Impresa, 238 F.3d at 1332); see also Advanced Data Concepts, Inc. v. United
States, 216 F.3d 1054, 1058 (Fed. Cir. 2000).
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III.

Discussion
A. Jurisdiction

As an initial matter, defendant reiterates its jurisdictional arguments in its Cross-Motion
for Judgment on the Administrative Record. See generally Def.’s CMJAR. Specifically,
defendant states that “[b]ecause the PACOM protest was subsequently filed and consolidated
into the instant case, the Government respectfully moves to dismiss the PACOM portion of this
protest” for lack of subject-matter jurisdiction and for failure to state a claim upon which relief
can be granted. Id. at 16. While defendant notes that it is “cognizant of the Court’s September
24, 2019” ruling on dismissal, it “respectfully disagree[s].” Id. In reiterating its jurisdictional
arguments, defendant contends that plaintiff’s Complaint is barred by FASA, as “FASA provides
that a ‘protest is not authorized in connection with the issuance or proposed issuance of a task or
delivery order.’” Id. (quoting 10 U.S.C. § 2304c(e)(1)). The Court finds that such an argument
fails.
Though the Court already determined that it has jurisdiction over plaintiff’s claims,
PAE-Parsons, 145 Fed. Cl. 194, the Court finds it prudent to elaborate on its initial holding. In
this procurement, the Agency ultimately awarded four Multiple Award Task Order Contracts
pursuant to the award scheme contemplated in the Solicitation. See, e.g., AR 289048. A “task
order contract” is defined as “a contract for services that does not procure or specify a firm
quantity of services (other than a minimum or maximum quantity) and that provides for the
issuance of orders for the performance of tasks during the period of the contract.” 10 U.S.C. §
2304d(1). Federal Acquisition Regulation 16.501-2(a) explains that, “[p]ursuant to 10 U.S.C.
2304d and 41 U.S.C. 4101, requirements contracts and indefinite-quantity contracts are also
known as delivery-order contracts or task-order contracts.” Thus, a task order contract “may
take the form of . . . indefinite-quantity (IDIQ) contracts” based on FAR Part 16.5. JOHN
CIBINIC, JR., RALPH C. NASH JR. & CHRISTOPHER R. YUKINS, FORMATION OF GOVERNMENT
CONTRACTS 327 (4th ed. 2011). FAR 52.216-27 further provides that these types of contracts
can be either single award or multiple award contracts,4 such as the Multiple Award Task Order
Contracts at issue in this procurement. It is undisputed that this Court has jurisdiction over the
“award of a contract or any alleged violation of statute or regulation in connection with a
procurement” pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1). Given the language of the
Tucker Act and this Court’s routine exercise of jurisdiction over protests contesting IDIQ
contract awards, the Court once again concludes that the FASA jurisdictional bar does not apply
to the case at bar. See 28 U.S.C. § 1491(b)(1); 10 U.S.C. § 2304d(1); 10 U.S.C. § 2304c(e); see,
e.g., Tele-Consultants, Inc. v. United States, 142 Fed. Cl. 686 (2019) (resolving a protest
challenging an agency’s IDIQ contract awards); see also Weeks Marine, Inc. v. United States,
575 F.3d 1352, 1359–60, 1362 (Fed. Cir. 2009) (acknowledging that the Tucker Act confers on
this Court jurisdiction over bid protests concerning Multiple Award Task Order Contracts).

4

FAR 52.216-27, titled Single or Multiple Awards, provides the following:
The Government may elect to award a single delivery order contract or task order
contract or to award multiple delivery order contracts or task order contracts for the
same or similar supplies or services to two or more sources under this solicitation.
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Moreover, as more fully explained below, the Court’s careful review of the legislative history of
FASA, the full text of 10 U.S.C. § 2304c, and the Administrative Record confirms that the
FASA bar does not apply.
Congress specifically tailored FASA to ensure that its “objectives would be accomplished
without undermining the key features of the current procurement statutes, such as full and open
competition and an effective bid protest process, that have been established over the years to
safeguard the acquisition system and prevent abuse.” S. REP. NO. 103-258, at 3 (1994)
(emphasis added). Anticipating that agencies might attempt to abuse FASA’s jurisdictional bar,
Congress further cautioned that task order contracts “must be structured carefully to ensure that
they are not abused to avoid competition and funnel money to favored contractors.” 140 CONG.
REC. 12369 (1994) (emphasis added). Accordingly, the courts have interpreted FASA to mean
that “once the task or delivery order contract itself has been obtained through full and open
competition, orders made pursuant to that contract are immune from [the Competition in
Contracting Act]’s full and open competition requirement.” Glob. Comput. Enter. v. United
States, 88 Fed. Cl. 350, 414 (2009) (quoting Corel Corp. v. United States, 165 F. Supp. 2d 12, 16
(D.D.C. 2001)). That interpretation and the Court’s conclusion that task order contracts are
different from pure task orders is bolstered by the language of 10 U.S.C. § 2304c(a), which
semantically crystalizes the distinction between a task order contract and a task order awarded
under that contract as follows: “[t]he following actions are not required for issuance of a task or
delivery order under a task or delivery order contract.” (emphasis added). Additionally, the
language in § 2304c(e)—the FASA bar—specifically focuses on task orders as opposed to task
order contracts, as it states that “[a] protest is not authorized in connection with the issuance or
proposed issuance of a task or delivery order except for . . .” (emphasis added). Thus, should
the Court permit the Agency to entirely avoid judicial review of its contract awards by
intentionally linking the task order awards to the task order contracts at issue, such a decision
would directly violate the distinctions drawn in 10 U.S.C. § 2304a between task order contracts
and task order awards as well as Congress’s clearly documented intent to prevent such a result
from occurring. See, e.g., 140 CONG. REC. 12369 (1994).
Additionally, the Administrative Record reveals that the IDIQ contract and the “orders
made pursuant to that contract” were obtained through the exact same procurement vessel. See
AR 2624; see also Glob. Comput., 88 Fed. Cl. at 414. If the Court were to extend the FASA bar
to this procurement simply because the IDIQ contract and the task orders were simultaneously
awarded, it would effectively be “undermining the key features of the current procurement
statutes, such as full and open competition,” in direct contravention of the legislative intent
behind FASA. See S. REP. NO. 103-258, at 3 (emphasis added). Such an application of FASA
would create a loophole in which an agency could award underlying IDIQ contracts that were
judicially impregnable, effectively obliterating the requirement that contracts be awarded
through free and open competition and breeding agency abuse of procurement law and
regulation.
Finally, the Court’s review of the Administrative Record likewise confirms that the
FASA bar does not apply. The Solicitation stipulated that the Agency would award a minimum
of four and up to six IDIQ contract awards that cover the six COCOMs and Afghanistan. AR
2511–12. The Agency deliberately made award determinations for each of the COCOM regions
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in descending order of priority, beginning with EUCOM and ending with SOUTHCOM. See id.
The six COCOMs could have been awarded to six different offerors, each with a different
minimum dollar guarantee. See id. Therefore, each COCOM “task order” could have been an
offeror’s first IDIQ contract award. Such a scheme clearly indicates both that the IDIQ awards
were so intrinsically linked with the task order awards as to be practicably a single award, and
that the Army functionally issued separate and distinctly different IDIQ contract awards.
This conclusion is further bolstered by language in the Solicitation itself, which dictates
that the “minimum guarantee for each LOGCAP V contract is the base year of the setting the
theater requirement . . . [for] each [COCOM].” AR 2512 (emphases added). As the setting the
theater task orders provide the entire value for the IDIQ contracts, bifurcating the task orders
from the contracts would result in contracts with no consideration. As a contract cannot exist
without consideration, and as the value of the setting the theater task order provides the only
consideration for the contracts at issue, clearly the task orders and the contracts are one and the
same. See Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009) (quoting
Trauma Servs. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997)) (“A party alleging
either an express or implied-in-fact contract with the government ‘must show a mutual intent to
contract including an offer, an acceptance, and consideration.’”); see also AR 2512. Therefore,
any offeror protesting the outcome of this procurement is necessarily protesting the contract
itself, not simply a task order.
In addition to its jurisdictional arguments, defendant also renews its arguments related to
standing. See generally Def.’s CMJAR. Specifically, defendant contends that “the Court must
still dismiss P2GLS’s complaint because, as a fellow LOGCAP V IDIQ contract awardee,
P2GLS is not an interested party with standing to challenge Vectrus’s IDIQ contract.” Id. at 17
(citations omitted). The Court turns again to its prior decision in PAE-Parsons, which held that,
as a disappointed bidder, P2GLS has standing to bring this protest based on the Agency’s unique
award scheme. 145 Fed. Cl. at 200.
This Court has previously held that “status as a contract awardee does not by itself
deprive this court of bid protest jurisdiction.” Nat’l Air Cargo Grp., Inc. v. United States, 126
Fed. Cl. 281, 295 (2016); cf. Sys. Appl. & Techs. Inc. v. United States, 691 F.3d 1374, 1381–82
(Fed. Cir. 2012). As the Court stated in its earlier opinion in PAE-Parsons, “[t]he nature of this
Solicitation essentially resulted in four concurrently awarded—but very different—IDIQ
contracts.” 145 Fed. Cl. at 200. The Court’s determination that these awards were separate and
distinct is only bolstered by the fact that each IDIQ contract had a different minimum guarantee,
which directly reflected the base year of the setting the theater requirement for the COCOM
region an awardee received. See AR 2512. Thus, the “task orders were so intrinsically linked to
the IDIQ awards as to be indistinguishable from the IDIQ contract awards themselves.”
PAE-Parsons, 145 Fed. Cl. at 200. Therefore, each awardee’s resulting IDIQ contract was
clearly different than any other offeror’s award such that each offeror, regardless of whether it is
an awardee, has a demonstrable “direct economic interest . . . affected by the award of the
contract.” See Weeks Marine, Inc., 575 F.3d at 1359 (citing Am. Fed’n of Gov’t Emps. v. United
States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)). Accordingly, plaintiff has adequately
demonstrated it is a disappointed bidder with respect to both the AFRICOM and PACOM
awards.
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B. Labor Staffing Model
In its Motion for Judgment on the Administrative Record, plaintiff alleges that the Army
did not evaluate P2GLS’s proposal consistent with the Solicitation’s requirements for analyzing
the Technical/Management Factor. Pl.’s MJAR at 23. Specifically, plaintiff argues that the
Army deviated from the Technical/Management Factor criteria set forth in the Solicitation by
assigning P2GLS an elevated risk description, despite not explicitly assessing any weaknesses.
Id. at 9. Plaintiff further contends that, because no weakness was assigned by the
Technical/Management Evaluation Team (“TMET”) or the SSAC, the SSA erred in assigning “a
risk rating of anything higher than ‘Low.’” Id. at 13. But for the allegedly erroneous “moderate”
risk description, plaintiff argues that it would have received an “Outstanding” adjectival rating
for the Technical/Management Factor, putting it on equal footing with Fluor and Vectrus for the
AFRICOM and PACOM awards. Id. at 15, 18. Finally, plaintiff asserts that “nothing in the
evaluation record justifies or supports the risk rating.” Id. at 14 (emphasis omitted). In
promulgating its arguments, plaintiff contends that “[w]here an evaluation record is devoid of
any explanation for its evaluation ratings or action, an agency’s award decision must be set
aside.” Id. While plaintiff correctly cites the standard for setting aside an award decision, the
Court does not believe the awards need to be set aside.
In response, the Army contends that P2GLS’s claim is predicated on the false premise
that “the Army’s rating of ‘Good’ in the Technical/Management factor was entirely predicated
upon its risk assessment of P2GLS’s staffing model.” Def.’s CMJAR at 20. Defendant further
argues that, while the Solicitation provided for risk descriptions, those descriptions were not
ratings, but, rather, were used in “furtherance of [the Army’s] analysis in assigning the overall
Technical/Management factor.” Id. at 21 (citing AR 2627).
In analyzing whether the Agency’s award decision should be set aside, the Court looks to
whether “the contracting agency provided a coherent and reasonable explanation of its exercise
of discretion.” FFL Pro LLC v. United States, 124 Fed. Cl. 536, 551 (2015) (citing Impresa, 238
F.3d at 1332–33). Under the Solicitation in the case at bar, offerors did not receive risk ratings,
but rather, they received adjectival ratings for each factor based upon “the degree to which the
proposed approach meets or does not meet the requirements as identified under each factor
through an assessment of the strengths, weaknesses, deficiencies, and risks.” AR 2624.
Therefore, whether the contract should be set aside turns on whether the Army sufficiently
explained its reasoning in making awards. 48 C.F.R. § 15.306.
The TMET determined that P2GLS’s final proposed LSM “use[d] a logical and
systematic approach for each of the requirements identified in the RFP” with “an explanation of
sources and estimating calculations used for determining its labor staffing performance factors.”
AR 68494. The TMET further explained that plaintiff’s proposal provided “a labor staffing
model and resulting approach that is consistent, scalable and adjustable across the broad range of
requirements identified in the RFP.” Id. However, the TMET also expressed concern over
plaintiff’s proposal because P2GLS made subjective adjustments to performance factors, which
the TMET believed would limit “the ability to employ effective measures to control cost and
ensure costs can be traceable to execution.” Id. Despite this, the TMET ultimately rated

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plaintiff’s Technical/Management Factor as “Good” for both the AFRICOM and PACOM
regions. AR 68496 (PACOM), 68498 (AFRICOM).
Plaintiff further posits that, because it was only assigned a “Good” adjectival rating, the
Army necessarily assessed plaintiff a significant weakness, which inflated its “risk rating” from
“Low” to “Moderate.” Pl.’s MJAR at 11. The Court does not agree with plaintiff’s
understanding. The TMET consistently described P2GLS’s Technical/Management approach
using descriptive language for a “Good” rating. AR 68495–98. Moreover, the TMET
consistently described P2GLS’s Technical/Management Factor in each COCOM as containing “a
thorough approach and understanding of the requirements.” See generally AR 68495–98.
Additionally, the TMET described each of Vectrus and Fluor’s Technical/Management
approaches as having an “exceptional approach and understanding of the requirements,”
consistent with the language for an “Outstanding” rating. AR 2627; see AR 68571–76 (Vectrus);
see also AR 68441–46 (Fluor).
The SSAC relied upon the TMET’s aforementioned Technical/Management evaluations
rated Fluor and Vectrus as “Outstanding” and P2GLS as “Good.” AR 70315–16. For
AFRICOM, the SSAC recommended P2GLS for award as it was the lower priced option and
simultaneously recognized that P2GLS’s Technical/Management proposal “was inferior to that
of Fluor.” AR 70476. For PACOM, the SSAC recommended Vectrus and determined that
P2GLS’s Technical/Management proposal was inferior to that of Vectrus. AR 70472–73. After
reviewing the evaluations, the SSA accepted the SSAC’s recommendation to award the PACOM
region to Vectrus. AR 70620. However, the SSA rejected the SSAC’s recommendation for
AFRICOM, and instead determined that the strengths in Fluor’s LSM warranted its selection
over P2GLS’s lower priced offer. AR 70627. Moreover, as the language for a “Good”
adjectival rating encompasses a “low to moderate” risk, an offer that is determined to be low-risk
may still be reasonably assessed a “Good” rating if the proposal aligns more readily with the
“Good” descriptors of its proposals understanding of the solicitation. In light of the holistic
approach to and full explanation for the Agency’s Technical/Management evaluations, the Court
finds that the Army sufficiently explained its award decision. As such, the Court will not set
aside the Agency’s contract awards to Fluor and Vectrus as neither award was arbitrary nor
capricious.
C. Strengths and Weaknesses
In addition to its arguments related to the LSM adjectival ratings, plaintiff contends that,
in not receiving a strength for traceability, its LSM received a “de facto significant weakness”
that the Agency did not address through discussions. Pl.’s MJAR at 19–20. As a result, plaintiff
contends that discussions were misleading and not meaningful. Id. at 21. In response, defendant
argues that merely “[s]aying that another offeror provided a superior proposal is not the same as
saying P2GLS’s proposal contained a significant weakness.” Def.’s CMJAR at 24. The Court
agrees with defendant’s understanding. The mere absence of a strength does not constitute a de
facto weakness.
The FAR states that the “scope and extent of discussions are a matter of contracting
officer judgment.” 48 C.F.R. § 15.306(d). This Court has expanded on this premise by stating
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that “the contracting officer ‘is not required to discuss every area where the proposal could be
improved,’” and that a “contracting officer has considerable discretion regarding the contents of
the discussions.” IBM Corp., U.S. Fed. v. United States, 101 Fed. Cl. 746, 764 (2011) (citing 48
C.F.R. § 15.306(d)(3)). For the Agency to hold meaningful discussions, a contracting officer
must “[a]t a minimum . . . indicate to, or discuss with, each offeror still being considered for
award, deficiencies, significant weaknesses, and adverse past performance information to which
the offeror has not yet had an opportunity to respond.” 48 C.F.R. § 15.306(d)(3); see also
Precision Asset Mgmt. Corp. v. United States, 135 Fed. Cl. 342, 352 (2017). However, as
defendant points out, “the contracting officer is not required to discuss every area where the
proposal could be improved.” Def.’s CMJAR at 26 (quoting 48 C.F.R. § 15.306(d)(3)).
As this Court has previously held, the meaningful discussion requirement “does not mean
that an agency must ‘spoon-feed’ an offeror as to each and every item that must be revised,
added, or otherwise addressed to improve a proposal.” WorldTravelService. v. United States, 49
Fed. Cl. 431, 439–40 (2001) (citations omitted). Discussions are only misleading if they
“misdirect the protestor as it revises its proposal,” or if they consist of “communications from the
government that are incorrect, confusing[,] or ambiguous.” D&S Consultants, Inc. v. United
States, 101 Fed. Cl. 23, 40 (2011) (quoting DMS All-Star Joint Venture v. United States, 90 Fed.
Cl. 653, 670 (2010)). While an agency may not favor one offeror over another pursuant to FAR
15.306(e)(1), “agencies are not required to conduct identical discussions with each offeror.”
Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 735 (2008); see also DMS, 90 Fed. Cl. at
672. Rather, “the procuring agency should tailor discussions to each offeror’s proposal.” DMS,
90 Fed. Cl. at 672 (citing WorldTravelService, 49 Fed. Cl. at 440).
Plaintiff’s position that the Army considered traceability in P2GLS’s LSM to be a
weakness without proper discussions is incorrect. As previously stated, the Army did not assign
an elevated risk rating to P2GLS’s LSM or explicitly assess a significant weakness or deficiency
in P2GLS’s Technical/Management evaluation. AR 68494. As the Army did not assess P2GLS
a significant weakness or deficiency, the Agency was not required to raise such issues during
discussions. See 48 C.F.R. § 15.306(d)(3). P2GLS was included in the competitive range and
participated in multiple rounds of discussions. See AR 70612. Of the over 100 Evaluation
Notices P2GLS received during discussions, more than forty concerned clarifications, significant
weaknesses, weaknesses, and deficiencies in P2GLS’s Technical/Management volume, none of
which related to P2GLS’s LSM traceability. See generally AR 70874–94. As P2GLS did not
receive a weakness for its traceability, and as a failure to receive a strength does not amount to a
de facto weakness, the Army did not err in failing to discuss traceability with P2GLS.
D. Award Decisions
Finally, plaintiff argues that the SSA’s award of the AFRICOM and PACOM regions was
arbitrary and capricious because the SSA placed an inordinate amount of weight on offerors’
LSMs. Pl.’s MJAR at 30. Plaintiff expands on this by stating that the best value determination
was flawed, as the SSA “ignor[ed] nearly every other evaluation factor” and “reject[ed] the
SSAC’s award recommendation without explanation.” Id. at 5. Plaintiff highlights that the
SSAC recommended P2GLS for AFRICOM. Id. at 31 (citing AR 70627). Plaintiff specifically
alleges that “the SSA failed to adequately document the basis for [her] rejection of the SSAC’s
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recommended award to P2GLS.” Id. at 30. In response, defendant contends that plaintiff’s
argument “amounts to nothing more than a disagreement with the SSA’s ultimate decision.”
Def.’s CMJAR at 36.
The record shows that the SSAC recommended awarding AFRICOM to P2GLS because
“P2GLS had the highest rated proposal based on an integrated assessment of the RFP’s stated
evaluation criteria.” AR 70476. The SSAC stated that “[i]n all comparisons and tradeoff
scenarios, P2GLS appeared to be the best value and award recommendation of the SSAC for the
AFRICOM decision.” Id. The SSA did not agree with the SSAC’s assessment, however, and
stated that “[g]iven the relative importance of evaluation factors, I find Fluor’s proposal to be
superior to P2GLS’[s] proposal and the best value.” AR 70629. The SSA further noted a
strength in Fluor’s proposal that was absent in P2GLS’s, affording Fluor’s LSM an added level
of predictability, which the SSA determined justified the payment of an 8.47% premium. Id.
As this Court has previously held, “[a]n offeror’s mere disagreement with the agency’s judgment
concerning the adequacy of the proposal is not sufficient to establish that the agency acted
unreasonably.” Am. Gen., LLC v. United States, 115 Fed. Cl. 653, 696 (2014) (citing Banknote
Corp. of Am. v. United States, 56 Fed. Cl. 377, 384 (2003)). The Solicitation clearly ranks the
importance of evaluation factors and states that the Technical/Management Factor is the most
important. AR 2624. In issuing contract awards, the SSA is not bound by the SSAC’s findings,
as the “SSA is required to exercise ‘independent judgment’ in making a source selection
decision.” Coastal Int’l Sec., Inc. v. United States, 93 Fed. Cl. 502, 536 (2010) (citing FAR
15.308)); 48 C.F.R. 15.308 (“While the [SSA] may use reports and analyses prepared by others,
the source selection decision shall represent the SSA’s independent judgment.”). FAR 15.308
further states that
[t]he source selection decision shall be documented, and the documentation shall
include the rationale for any business judgments and tradeoffs made or relied on by
the SSA, including benefits associated with additional costs. Although the rationale
for the selection decision must be documented, that documentation need not
quantify the tradeoffs that led to the decision.
Weighing the merits of each proposal against one another, the SSA specifically found that
“[g]iven the relative importance of the evaluation factors, the strength in Fluor’s
Technical/Management Factor[] justifies payment of the $11M (8.47%) premium.” AR 70629.
As the SSA clearly explained her reasons for making the awards, it seems clear to the Court that
the SSA exercised her independent judgment in awarding AFRICOM to Fluor and PACOM to
Vectrus. As the SSA’s award decision was neither “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law,” the Court cannot set the award aside. See Banknote,
365 F.3d 1345, 1350–51 (Fed. Cir. 2004) (quoting Advanced Data, 216 F.3d at 1057).
E. Injunctive Relief and Corrective Action
In addition to its merits-based arguments, plaintiff asserts that it is entitled to permanent
injunctive relief. Pl.’s MJAR at 39. As plaintiff has not succeeded on the merits, injunctive
relief is inappropriate, and no further analysis of the remaining factors is necessary. See Mobile
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Med. Int’l Corp. v. United States, 95 Fed. Cl. 706, 742 (2010) (“[A] permanent injunction
requires actual success on the merits.”) (citing Centech Grp., Inc. v. United States, 554 F.3d
1029, 1037 (Fed. Cir. 2009)); see also York Telecom Corp. v. United States, 130 Fed. Cl. 186,
197–98 (2017) (citing Nat’l Steel Car, Ltd. v. Can. Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir.
2004)) (“A plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon
a motion for permanent injunctive relief.”). Additionally, the Court does not believe that the
terms of the Solicitation regarding the LSMs were ambiguous and finds that any argument
suggesting that plaintiff was prejudiced by such an ambiguity has clearly been waived. See
generally Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).
Irrespective of the Court’s findings in the instant action, on December 3, 2019, the Court
held a status conference in all of the directly-related cases associated with the LOGCAP V
procurement. Although defendant demonstrated success on the merits in the case at bar, the
Court determined that issues with the Agency’s price reasonableness analyses warranted
corrective action. On December 17, 2019, the Court issued an Order staying and remanding the
case to the Agency for a period of forty-five days—up to and including January 31, 2020—for
the Agency to conduct corrective action. Order Remanding Case to Army, ECF No. 74. In that
Order, the Court also directed the defendant to file a status report on or before February 7, 2020,
“apprising this Court of the results of the Agency’s corrective action and providing the Court
with the Agency’s new price reasonableness determinations.” Id. at 2. In turn, the Court
afforded the plaintiff seven days—up to and including February 14, 2020—to respond to
defendant’s Status Report. Id. at 2. On February 5, 2020, defendant filed a status report
regarding that corrective action, along with over 1,000 pages of supporting documentation. See
Defendant’s Status Report Regarding Corrective Action, ECF No. 75; see also Associated
Documents, ECF No. 76. Plaintiff responded to defendant’s Status Report on February 14, 2020,
stating that “[t]he analysis undertaken by the Army . . . has no bearing upon the issues P2GLS
raised in its protests,” and renewing its request “that the Court grant P2GLS’ Motion for
Judgment on the Administrative Record.” Plaintiff PAE-Parsons Global Logistics Services,
LLC’s Response to Defendant’s Status Report Regarding Corrective Action, ECF No. 77 at 1.
As corrective action is now complete and plaintiff failed to raise new issues that would require
additional review by the Court, the Court issues this Opinion.
IV.

Conclusion

For the reasons set forth above, plaintiff’s MOTION for Judgment on the Administrative
Record is DENIED. Defendant and defendant-intervenors’ CROSS-MOTIONS for Judgment
on the Administrative Record are GRANTED. The Clerk is directed to enter judgment in favor
of defendant and defendant-intervenors, consistent with this Opinion.
IT IS SO ORDERED.
s/

Loren A. Smith

Loren A. Smith,
Senior Judge

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