SCIENCE AND TECHNOLOGY CORPORATION v. USA

Filing 39

UNREPORTED OPINION. Signed by Judge Carolyn N. Lerner. (lb) Service on parties made.

In the United States Court of Federal Claims
SCIENCE AND TECHNOLOGY
CORPORATION,
Plaintiff,
v.
THE UNITED STATES,

No. 24-1394
(Filed: January 3, 2025) 1

Defendant,
and
ANALYTICAL MECHANICS
ASSOCIATES, INC.,
Defendant-Intervenor.

Robert J. Symon, Bradley Arant Boult Cummings LLP, Washington, D.C., for Plaintiff.
Kelly Elizabeth Phipps, Civil Division, United States Department of Justice, Washington, D.C.,
for Defendant.
Francis Eugene Purcell, Jr., Thompson Hine LLP, Washington, D.C., for Intervenor.
LERNER, Judge.

OPINION AND ORDER

In this post award bid protest, Plaintiff, Science and Technology Corporation (“STC” or
“the Corporation”), challenges the National Aeronautics and Space Administration’s (“NASA”
or “the Agency”) decision to award Intervenor, Analytical Mechanics Associates, Inc. (“AMA”),
a contract for Aircraft and Spaceflight Systems Engineering Support Services (“ASSESS”). STC
contends that the award should be set aside because the Agency unfairly adjusted its proposed
price through a flawed cost realism analysis without seeking discussions or clarifications with
STC. Plaintiff also claims that the Agency unreasonably evaluated Mission Suitability and Past
Performance factors for both Offerors, and it conducted a flawed and incomplete best value
trade-off analysis. These errors, STC alleges, prejudiced the Corporation.
1

This Opinion was filed on December 19, 2024, and the parties were afforded time to
propose redactions. Opinion & Order, ECF No. 35. Plaintiff proposed unopposed redactions.
ECF No. 38. Accordingly, the Court reissues this Opinion with the agreed upon redactions,
which are noted with bracketed asterisks, e.g., [***].

Plaintiff’s arguments are unavailing. The Corporation fails to meet its burden to establish
that the Agency acted arbitrarily or capriciously in its evaluation of STC’s proposal. Plaintiff did
not provide NASA critical information that it needed to evaluate the proposal as the Solicitation
required. As explained below, the Agency acted reasonably.
Before the Court are the parties’ Motions for Judgment on the Administrative Record.
Pl.’s Mot. for J. on the Admin. R. (hereinafter “Pl.’s Mot.”), ECF No. 25; Def.’s Cross-Mot. and
Resp. for J. on the Admin. R. (hereinafter “Def.’s Mot.”), ECF No. 27; Intervenor’s Cross-Mot.
and Resp. for J. on the Admin. R., ECF No. 26. For the reasons below, STC’s Motion for
Judgment on the Administrative Record is DENIED. Defendant’s and Intervenor’s
cross-motions are GRANTED.
I.

Background

On March 16, 2023, NASA issued a Request for Proposal (“RFP”), Solicitation No.
80ARC023R006, and supplemented it once on April 6, 2023. Tab 18 at AR 1025; Tab 19 at AR
1333. The RFP sought a small business contractor to provide engineering support services for its
spaceflight systems and the development of aircraft and spaceflight technologies at NASA’s
Ames Research Center (“NASA Ames”) in California. Tab 10 at AR 401; Tab 11 at AR 423,
430–31; Tab 19 at AR 1481. See also Def.’s Mot. Ex. 1 at 2–4.
The ASSESS contract is an amalgamation of two prior contracts for support services.
NASA Ames previously contracted with STC for the Aeronautics and Exploration Mission
Modeling and Simulation (“AEMMS”) award. Tab 11 at AR 422. The Agency separately
awarded AMA the Entry Systems Research and Technology Development (“ESTRAD”)
contract. Id. NASA decided to combine these two contracts into one, with a sole contractor. Id.
at AR 466. The Agency estimated the ASSESS contract is worth $92.7 million. Tab 11 at AR
423. The Source Evaluation Board (“SEB”) would first assess the proposals and provide expert
analysis. Tab 19 at 1468–69. The SEB would then present its findings to the Source Selection
Authority (“SSA”), who would make the final award decision. Id.
A.

The Solicitation

Federal Acquisition Regulation (“FAR”) subpart 15.3 and NASA FAR Supplement
(“NFS”) subpart 1815.3 governed the Solicitation. Tab 33 at AR 2567. The ASSESS contract
includes a firm fixed price (“FFP”) term for contract management as well as an indefinite
delivery indefinite quantity (“IDIQ”) component for technical services in ten specific discipline
areas to be performed under Task Orders issued under the contract. Tab 19a at 1334. See also
Tab 19b at 1508–09 (listing the ten IDIQ technical discipline requirements).
The ASSESS Solicitation informed bidders that NASA Ames did not intend to hold
discussions unless it later decided they were necessary. Tab 19 at AR 1468. See also Tab 33 at
AR 2568. Offerors were directed to follow the preparation instructions for their proposals, and
the proposals were evaluated “on the basis of the material presented and substantiated in the
Offeror’s proposal and not on the basis of what may be implied.” Tab 19 at AR 1469. Vague
2

statements in proposals would be “interpreted as a lack of understanding on the part of the
Offeror and/or inability to demonstrate adequate qualifications and resources.” Id.
NASA Ames weighed three contract factors to determine which proposal represented the
best value for the Agency. Id. at AR 1468; Tab 18a at AR 1164–65. The three evaluation
factors were: Mission Suitability, Past Performance, and Cost/Price. Tab 19 at AR 1468 (citing
factors described at NFS 1815.304-70(b)-(d)). Mission Suitability outweighed Past
Performance, and the combination of the two factors was “significantly more important” than
Cost/Price—the least important factor in the trade-off analysis. Id. at AR 1479. Still, the
Solicitation instructed offerors to include their best terms for price. Id. at AR 1468.
1.

Mission Suitability

Mission Suitability conveys “the merit or excellence of the proposed approach to
performing the requirements.” Id. at AR 1444. See generally NFS 1815.304-70(b). Under
Mission Suitability, the Agency would evaluate each proposal’s approach to performing the
contract requirements. Id. at AR 1470. NASA Ames’ rubric for this factor contained two
subfactors: management approach (subfactor A) and technical understanding (subfactor B). Id.
at AR 1444–48, 1470. Management approach would assess an offeror’s plan to address the
performance work statement (“PWS”) requirements. Id. at AR 1444–47. The SEB would
evaluate each proposal for organizational structure and partnership approach as well as plans for
staffing, compensation, data management, phase-in, and fostering innovation. Id. Technical
understanding would require each offeror to reply to three sample Task Orders for work product
to support a hypothetical mission to land a spacecraft carrying scientific equipment on Venus.
Id. at AR 1447–53. NASA Ames appraised each offeror based on their written responses. Id. at
AR 1443.
Mission Suitability was numerically scored on a 1,000-point scale. Id. at AR 1470, 1472.
The RFP allocated 550 points to management approach, and 450 points went towards technical
understanding. Id. at AR 1472. NASA Ames evaluated each subfactor for strengths and
weaknesses and then assigned each subfactor an adjectival and numerical rating. Id. at AR 1470.
The adjectival ratings are explained in the table below:

3

Adjectival Rating
Excellent

Very Good

Good

Fair

Poor

Description
A comprehensive and thorough proposal of
exceptional merit with one or more significant
strengths. No deficiency or significant weaknesses
exist.
A proposal having no deficiency and which
demonstrates over-all competence. One or more
significant strengths have been found, and strengths
outbalance weaknesses that exist.
A proposal having no deficiency and which shows
a reasonably sound response. There may be
strengths or weaknesses, or both. As a whole,
weaknesses not off-set by strengths do not
significantly detract from the offeror’s response.
A proposal having no deficiency and which has one
or more weaknesses. Weaknesses outbalance any
strengths.
A proposal that has one or more deficiencies or
significant weaknesses that demonstrate a lack of
overall competence or would require a major
proposal revision to correct.

Percentile Rating
91–100

71–90

51–70

31–50

0–30

Id. at AR 1471. The Solicitation defined weakness as “a flaw in the proposal that increases the
risk of unsuccessful contract performance.” Id. To receive one of the two highest adjectival
ratings, a proposal needed significant strengths that “greatly enhance[d] the potential for
successful contract performance.” Id. at AR 1471–72.
The RFP instructed that “[t]he compatibility between the proposed technical and
management approach and the overall resources proposed to accomplish the work” was an
important consideration in the evaluation of the Mission Suitability factor. Id. at AR 1472. If
the SEB determined that a proposal did not adequately demonstrate that an offeror could perform
the work with the resources provided, the Board could find that the discrepancy “warrant[ed] a
probable cost adjustment.” Id. at AR 1444, 1472, 1478. As the Solicitation stated: “[i]ntegration
between mission suitability findings and probable cost adjustments is critical to performing cost
realism.” Id. at AR 1444, 1472.
2.

Past Performance

Each offeror was required to provide references for three recent past contract
performances both for itself and any of its subcontractors. Id. at AR 1454, 1476. The references
needed to be from contracts meeting a specified minimum contract value that illustrated an
offeror’s experience delivering services and products similar in content and size to the ASSESS
contract. Id. at AR 1454, 1475. Each reference needed to include a detailed description of the
4

work the offeror performed as well as a “comparison to the requirements in each PWS section to
be performed under this effort.” Id. at AR 1455.
NASA Ames evaluated each reference’s relevance to the ASSESS contract requirements
as well as the quality of the offeror’s performance. Under FAR Part 15, the Agency determined
relevancy of past contracts based on their size, content, and complexity. Id. at AR 1474–75.
Defendant then assigned an overall confidence score of very high, high, moderate, low, very low,
or neutral. Id. at AR 1475–77.
3.

Cost/Price

The Cost/Price factor was evaluated on reasonableness and, if necessary, the cost realism
of proposed costs in a proposal. NFS 1815.403-70(c). The Solicitation advised potential
offerors that it would determine the probable cost of each proposal by evaluating the proposal’s
realism in accordance with FAR 15.305(a)(1) and NFS 1815.305(a)(1). Tab 19 at AR 1477.
NASA Ames explained that cost realism means the costs in a proposal are realistic for the work
performed and consistent with the elements of the offeror’s technical proposal. Id. (citing FAR
2.101(b)). The Solicitation specified that each offeror must “explain in detail all pricing and
estimating techniques” in its proposal. Id. at AR 1457. Offerors needed to “[d]isclose the basis
of all projections, rates, ratios, percentages, and factors in enough detail to facilitate the [SEB’s]
understanding and ability to mathematically verify the results of these estimating tools.” Id. at
AR 1458.
NASA Ames instructed that it would “determine the Probable Cost of each Offeror’s
proposal by evaluating the realism of each Offeror’s proposed cost to ensure the Offeror
understands the magnitude and complexity of the effort.” Id. at AR 1477. In conducting a cost
realism analysis, the Agency would consider whether an offeror’s proposed costs “indicate[d] a
clear understanding of solicitation requirements” and “demonstrate[ed] that the Offeror [would]
be able to perform the work.” Id. at AR 1478. The Agency noted that it may compare proposed
costs and prices to historical data as well as to other proposed costs/price given in response to the
RFP. Id.
B.

Offerors’ Proposals

Both STC and AMA timely submitted proposals for the ASSESS contract on May 11,
2023. See generally Tab 21 (AMA’s proposal); Tab 22 (STC’s proposal). No other offerors
applied for the contract. Tab 24 at 2217. The SEB, which provided expert analysis, evaluated
the proposals. See Tab 6 at AR 289–91; Tab 25 AR 2280–81 (detailing SEB composition). The
SEB assessed each proposal under the three evaluation factors. See id.
1.

AMA Performed Better than STC in Mission Suitability.

AMA and STC received the following evaluation for the Mission Suitability subfactors:

5

AMA

Numerical
Scores
Percent
Adjectival
Scores
Significant
Strengths
Strengths
Weaknesses

STC

Management
Approach
(550 total)

Technical
Understanding
(450 total)

Management
Approach
(550 total)

Technical
Understanding
(450 total)

379.5

355.5

286

229.5

69%

79%

52%

51%

Good

Very Good

Good

Good

0

1

0

0

5
0

3
1

1
1

1
3

Tab 25 at AR 2314, 2341, 2342. Under the management approach subfactor, the SEB found
AMA had no weaknesses or deficiencies—which proved significant in the decision to award
AMA the contract. Id. at AR 2295; Tab 33 at AR 2577. The SEB found AMA had one
weakness under technical understanding because their proposed approach did not address a
requirement for predicting buffet onset—a noticeable vibration or oscillation of aircraft moving
near the speed of sound. Tab 25 at AR 2328–29.
In contrast, the SEB found several weaknesses in STC’s proposal under the management
approach and technical approach prongs. Tab 25 at AR 2306, 2330–31. It wrote:
The Offeror[’]s proposal did not describe the proposed organizational structure that
clearly demonstrates how the Offeror will perform these programmatic and technical
contractual requirements, nor did it provide a detailed explanation of how the [O]fferor
will coordinate all entities/personnel responsible for accomplishing the following
requirements . . . : Safety and Health, Records Management, Secure Handling and
Protection of Government Controlled Contractor Generated Data, IT Security,
Installation-Accountable Government Property.
Id. at 2306. See also id. at AR 2310–13. The SEB noted that since STC did not address these
requirements in their proposal, it would “likely lead to critical gaps in the required contract
management functions, potentially increasing the risk of unsuccessful contract performance.” Id.
at AR 2306.
Under the technical approach subfactor, the SEB found STC had one strength. Unlike
AMA, STC had an effective approach to buffet mitigation. Id. at AR 2330; Tab 33 at AR 2577.
However, Plaintiff had three weaknesses in database generation, arc jet test planning, and risk
mitigation. Tab 25 at AR 2333–38. These weaknesses were assigned, in part, because STC
omitted important steps in its analysis and did not engage in adequate discussion of its approach
to the Task Orders. Id. at AR 2330–31. In total, AMA received 735 points under Mission
Suitability. Id. at AR 2342. Plaintiff received 515.5 points. Id.
6

2.

AMA Received a Slightly Higher Rating in Past Performance.

Under the Past Performance factor, AMA received a confidence rating of “very high”
based on three previous contracts with different NASA research centers where it was the primary
contractor. Id. at AR 2346, 2349. Very high was the highest confidence factor. Id. at AR 2345.
The table below shows how the SSA and the SEB evaluated AMA:
Contract Value Period

Level of Pertinence
(Size, Content, & Complexity)

Very
Highly
Relevant

Highly
Relevant

Relevant

Slightly
Relevant

Not
Relevant

Overall
Level of
Relevance

ESTRAD

?

?

4

4

2

0

1

AMA
Contract 2

?

?

2

8

1

0

0

Very Highly
Pertinent
Very Highly
Pertinent

AMA
Contract 3

?

?

0

1

2

1

7

Pertinent

Quality of
Performance

Exceptional
Exceptional
Very Effective

Tab 26a at AR 2390. AMA received an overall “very high” confidence rating. Id.
The evaluators found two of AMA’s contracts were cumulatively “very highly pertinent.”
Id. This included its work on the ESTRAD contract, which was one of the two predecessor
contracts to the ASSESS award. Id. at AR 2391–99. Defendant decided that AMA’s past
performance was of “exceptional merit” and “indicate[d] exemplary performance in a timely,
efficient, and economical manner and very minor (if any) problems with no adverse effect on
overall performance.” Id. at AR 2411. See also Tab 25 at AR 2348.
STC received a confidence rating of “high” for its three past experiences as the main
contractor for NASA research centers. Tab 26b at AR 2434. Two of its contracts were found to
be “pertinent,” and it performed “Effective” on one and with “Exceptional Merit” on the other.
Tab 25 at AR 2355. Its third contract was found “highly pertinent,” and it performed with
“Exceptional Merit.” Id. The table below illustrates how NASA Ames ranked STC’s past
performances:
Contract

Value

Period
Very
Highly
Relevant

AEMMS
STC
Contract 2
STC
Contract 3

Level of Pertinence
(Size, Content, & Complexity)
Highly
Relevant

Relevant

Slightly
Relevant

Not
Relevant

Overall
Level of
Relevance

Quality of
Performance

?

?

2

2

5

2

0

Highly
Pertinent

Exceptional

?

?

0

1

4

3

3

Pertinent

Effective

?

?

1

1

2

4

3

Pertinent

Exceptional

7

Tab 26b at AR 2412. STC received an overall “high” confidence rating. Id.
The SEB assigned a “high” confidence level “because the past performance information
evaluated by the SEB ranged from highly pertinent to pertinent to this acquisition and
demonstrated performance ranging from exceptional to effective.” Tab 25 at AR 2356. Notably,
STC’s AEMMS contract, which was also a precursor to the ASSESS award, was ranked as
“highly pertinent.” Tab 26b at AR 2412. Defendant determined that STC’s proposal
demonstrated “effective performance” but noted that it had “minor problems that had little
identifiable effect on overall performance.” Id. at AR 2434. Accordingly, Defendant found that
AMA slightly exceeded STC in the past performance category. Tab 33 at 2578.
3.

Cost/Price Evaluation

Finally, the SEB evaluated the two proposals under the Cost/Price factor. The SEB
conducted a cost realism analysis for each proposal. See generally Tab 24 at AR 2217–36. The
table below summarizes the adjustments made by the Agency:

Phase-in
Contract
Management
(Year 1)
Contract
Management
(Year 2)
Contract
Management
(Year 3)
Contract
Management
(Year 4)
Contract
Management
(Year 5)
IDIQ Task
Orders
FAR 52.217-8
FFP CLINs
FAR 52.217-8
CPFF CLIN
Grand Total

Initial Price
($)
AMA
STC
-

Probable Costs
($)
AMA
STC
-

Probable Cost Adjustments
($)
AMA
STC
-

909,270

572,284

909,270

572,284

-

-

934,343

586,572

934,343

586,572

-

-

960,359

597,455

960,359

597,455

-

-

988,010

618,300

998,010

618,300

-

-

1,016,587

640,687

1,016,587

640,687

-

-

84,096,702

79,690,923

89,496,935

87,126,014

5,400,233

7,435,091

508,294

320,344

508,294

320,344

-

-

8,409,670

7,969,092

8,949,694

8,712,601

540,024

743,509

97,823,657

90,995,657

103,763,492

99,174,257

5,940,257

8,176,600

Id. at AR 2218. In accordance with the RFP, Defendant did not perform a price realism analysis
on the fixed costs in the contract. Id. Neither Offeror proposed costs for phase-in. Id.
8

The Agency made upward probable adjustments to both AMA’s and STC’s proposals.
Id. See also id. at AR 2223–30. Both were considered incumbent contractors because of their
work with the ESTRAD and AEMMS awards, so both received labor rate adjustments based on
historical data from their incumbency. Id. at AR 2224–25; Tab 25 at 2372–73. However, this
was AMA’s only adjustment. See Tab 24 at AR 2224–30.
In comparison, STC received several upward adjustments to its proposed Division 3
Overhead, Business Segment 1 G&A Rate, and Tier 1 G&A Rate. Id. The Agency made many
of its adjustments to STC’s costs because it failed to provide information or documentation that
supported its estimates. See, e.g., Tab 24 at AR 2227 (“There is no adequate supporting
documentation to accept the increased business base at face value.”). AMA provided this
information. See Tab 21d at AR 1787–93.
The Agency acknowledged that STC’s proposal was based on its 2022 and 2023
preliminary forecasted rates submitted to the Defense Contract Audit Agency (“DCAA”). Tab
24 at AR 2225. As STC explained in its proposal, at the time of submission, its 2022 rates had
not been finalized by DCAA. See e.g., Tab 22d at AR 2106–08. But STC did not provide the
preliminary forecasted rates to the Agency. See, e.g., Pl.’s Mot. at 10.
a. Division 3 Overhead Rate Adjustment
NASA Ames flagged two elements of STC’s overhead pool computation. First, STC
forecasted “zero costs” for “Taxes, State income, & Franchise costs.” Tab 24 at AR 2225–26.
This did not align with NASA’s historical data on STC from 2019 through 2021. Id. Thus,
Defendant estimated STC’s probable cost based on a simple average of its historical costs from
the three years of available data. Tab 24 at AR 2226. NASA Ames saw this as a conservative
approach given that STC’s costs in 2021 were almost double what they were in 2019 and 2020.
Id.
Second, the Agency questioned STC’s sector allocation cost element. Id.; Tab 22d at AR
2107 (mentioning that STC had another contract award that would affect its base rate). STC’s
forecasted base number considered another Division 3 contract that the entity would perform. Id.
The base figure consisted of an escalated base plus amounts to represent the base of the other
contract. Tab 24 at AR 2226. However, STC provided “insufficient supporting documentation
to accept the increased forecasted amount of the application base.” Id. Defendant noted that
historically STC “allocated amounts ranging from $[******] to $[******] per year” but its
forecast “allocation was significantly reduced ranging in amounts from $[*****] to $[*****] per
year.” Id. AMA’s forecasted base number also considered other contracts, but unlike STC,
AMA provided NASA Ames with more detail about how AMA’s other awards would affect its
anticipated base rate. Compare Tab 22d at AR 2107 with Tab 21d at AR 1787–88. Accordingly,
Defendant increased STC’s predicted figure using a simple three-year average of the historical
data. Tab 24 at AR 2226

9

b. Business Segment 1 G&A Adjustment
NASA Ames changed STC’s Business Segment 1 G&A Adjustment. Again, the SEB
acknowledged that STC’s calculations were based on data it submitted to DCAA, which included
adjustments for STC’s work on another Division 3 contract. Id. at AR 2227. STC predicted
“lower than historical rates due to (i) additional base labor dollars projected for [the segment]”
and (ii) reduced overhead costs if STC won a separate contract. Id. The anticipated costs in the
proposal for the 2024-2029 period were lower than STC’s expenses in the available historical
data. Tab 22d at AR 2121.
However, Defendant found that “[t]he proposed rates [were] volatile and outyear projects
[were] based on a robust unjustified increase in business base assumptions.” Tab 24 at AR 2227.
The SEB thought STC’s assumption that its base would double by 2029 was unlikely. Id. Given
this evaluation, the Agency believed it was unlikely that STC’s pool costs would substantially
decrease as Plaintiff predicted. Id. NASA Ames found that STC provided no “adequate
supporting documentation to accept the increased business base at face value.” Id.
The Agency specified that it adjusted STC’s pool costs for multiple categories: indirect
labor, bid and proposal, payroll additives and fringe benefits, travel, and existing business
allocation base. Id. at AR 2228. Defendant found that STC’s forecasted indirect labor “was
essentially cut in half while at the same time the business base is dramatically increasing. This is
not realistic.” Id. After the Agency’s probable cost adjustment, it found forecasted rates were
not in alignment with historical information STC provided, so the Agency modestly increased
the resulting number. Id. Defendant further noted STC’s travel costs appeared unrealistic given
pre-pandemic costs. Id. at AR 2229. STC proposed negative costs for its Bid and Proposal
prong without explaining why negative costs were acceptable in its pooled costs. Id.
c. Tier 1 G&A Adjustment
Defendant next turned to STC’s estimate for Tier 1 G&A Rates. The Agency repeated its
understanding that STC’s figures were based on estimated costs from the DCAA. Id. at AR
2229. The SEB again found STC’s “proposed rates [were] volatile and outyear projects [were]
based on a robust unjustified increase in business base assumptions.” Id. Plaintiff forecasted
rates between [**]% and [***]%, which the Board determined were not adequately supported by
the documentation in its application. Id. Accordingly, the SEB adjusted STC’s payroll service
center, postage and freight, and travel costs. Id. at AR 2230. STC failed to explain in its
proposal why it forecasted no cost for its payroll service center or for postage and freight—both
of which were significant costs in 2019. Id. Additionally, the Agency repeated its concerns with
STC’s travel estimates and its business base allocation. Id.
4.

SSA Review

After its evaluation, the SEB identified potential discussion questions. Id. at AR 2231.
The SEB noted no questions about AMA. Id. In contrast, the SEB listed ten potential discussion
questions for STC, which were largely based on the Company’s failure to explain many of its
10

forecasted costs. Id. at AR 2231–32. In total, NASA Ames increased AMA’s proposed price by
$5.9 million and STC’s by $8.2 million. Id. at AR 2223–24. AMA’s adjustments were solely
based on its historical incumbent labor rates. Id.; Tab 25 at 2370.
The Agency estimated that AMA’s proposal would cost $103,763,492. Tab 25 at 2389.
STC estimated its proposal would cost $99,174,257—a $4,589,235 difference. Id. The table
below summarizes the evaluation of AMA and STC:
Mission Suitability Subfactors

AMA
STC

Management
Approach
(550 points)

Adjectival
Rating
(550 points)

Good
379.5
Good
286

Very Good
355.5
Good
229.5

Mission
Suitability
(1,000
points)

Past
Performance
Level of
Confidence

Probable
Cost/Price

735

Very High

$103,763,492

515.5

High

$99,174,257

Id. at 2389. After the Agency’s adjustments, the two Offerors’ Cost/Price were close, but their
scores in Mission Suitability differed significantly. Id.
Once the SEB completed its evaluation of the two proposals, it met with the SSA on
March 27, 2024. Tab 33 at AR 2567. The SSA ultimately chose which offer to accept. See Tab
6 at AR 289 (explaining that SSAs make selection decisions for research centers). The SEB
presented its conclusions and described why STC received lower ratings for both Mission
Suitability and Past Performance. Tab 33 at 2571–75. The SSA found the Mission Suitability
scores “were justified by the SEB’s underlying findings” and the Past Performance evaluations
“were detailed and clearly documented.” Id. at AR 2575–76. The SEB’s Cost/Price evaluation
“made logical and sound cost adjustments.” Id. at AR 2576. The SSA determined there was
“nothing to be gained by . . . conducting subsequent discussions, given there was sufficient data
to make a reasoned source selection.” Id. The SSA awarded the ASSESS contract to AMA
because its proposal represented the best value for the Government. Id.
As specified in the Solicitation, the SSA noted Mission Suitability was more important
than Past Performance, which in turn was more important than Cost/Price. Id. Together,
Mission Suitability and Past Performance significantly outweighed Cost/Price. Id. AMA scored
higher than STC in the Mission Suitability factor overall and in both subfactors. Id. “[T]he
AMA proposal offered a substantial discernable advantage over the STC proposal.” Id. at AR
2578. The SSA “considered the potential impact of each finding and its relevance to this
procurement, against the selection criteria prescribed in the RFP.” Id. at AR 2576. It also noted
that AMA had significantly more strengths than STC under both subfactors. Id. at AR 2576–77.
The SSA found AMA had the better Past Performance scores; though, the two Offerors
were very close. Id. at AR 2578. The SSA determined the difference in cost between the two
proposals was fungible. Id. Both proposals received an upward probable cost adjustment, “with
11

AMA’s probable cost/price being approximately only 5% higher than STC[’]s.” Id. STC’s
proposed price was only “marginally lower.” Id. The SSA expressed confidence in the probable
cost adjustments and found “the STC proposal not to be a notable advantage to the Government.”
Id. In sum, the AMA proposal still represented the best value to the government even though it
had a slightly higher probable cost because of its “substantial Mission Suitability advantages . . .
combined with its Very High Level of Confidence rating for Past Performance.” Id.
C.

Initial Contract Award and Government Accountability Office Protest

On May 6, 2024, NASA Ames informed STC that it planned to award AMA the contract.
Tab 35 at AR 2581. The Agency finalized its plans three days later. Tab 35 at AR 2581. STC
received a debriefing on May 15, 2024. Tabs 37, 38. During the meeting, STC’s representatives
did not ask any questions. Tab 38 at 2667.
On May 20, 2024, STC protested the award at the Government Accountability Office
(“GAO”). Tab 41 at AR 2673. The GAO denied STC’s protest on August 23, 2024. Tab 51.
According to the GAO, NASA Ames did not unreasonably evaluate the proposals under Mission
Suitability or Past Performance. Id. at AR 4834–43. Nor were its probable cost adjustments
improper or its best value trade-off unreasonable. Id. at 4844–45. Unsatisfied with the GAO’s
conclusion, Plaintiff filed its Complaint here on September 9, 2024. ECF No. 1.
II.

Jurisdiction

The Court of Federal Claims has jurisdiction over protests by interested parties who
object to “any alleged violation of statute or regulation in connection with a procurement or a
proposed procurement.” 28 U.S.C. § 1491(b)(1). The Court has the authority to “render
judgment on an action by an interested party objecting . . . to a proposed award or the award of a
contract.” Id.; Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380–81 (Fed.
Cir. 2012).
The party invoking the Court’s bid protest jurisdiction bears the burden of establishing
the elements of standing and demonstrating that they are an interested party. Weeks Marine, Inc.
v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). Interested parties are “actual or
prospective bidders or offerors whose direct economic interest would be affected by the award of
the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL-CIO v. United
States, 258 F.3d 1294, 1302 (Fed. Cir. 2001). A plaintiff must show that but for “the alleged
error[s] in the procurement process,” it had a “substantial chance” of winning the award.
Mission1st Grp., Inc. v. United States, 144 Fed. Cl. 200, 209 (2019) (citing Weeks Marine, 575
F.3d at 1359). See also Ernst & Young, LLP v. United States, 136 Fed. Cl. 475, 500 (2018)
(explaining that the test for prejudice in a standing analysis is more lenient than in actual
causation).
STC submitted a proposal in response to NASA’s RFP Solicitation for the ASSESS
Contract, and it asserts that if not for Defendant’s errors, the Corporation would have a
substantial chance of receiving the award. Pl.’s Mot. at 8. The Court has jurisdiction over
STC’s claims.
12

III.

Standard of Review

In bid protest cases, courts look to whether an agency’s action was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law. 28 U.S.C. § 1491(b)(1)
(adopting the standard of 5 U.S.C. § 706); Glenn Def. Marine (ASIA), PTE Ltd. v. United States,
720 F.3d 901, 907 (Fed. Cir. 2013); Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.
Cir. 2005). The arbitrary and capricious standard used in bid protests is “highly deferential.”
Glenn Def. Marine, 720 F.3d at 907 (quoting Advanced Data Concepts, Inc. v. United States, 216
F.3d 1054, 1058 (Fed. Cir. 2000)).
A protestor bears the burden to show by a preponderance of the evidence that an agency’s
decision was arbitrary and capricious. Crowley Gov’t Servs., Inc. v. United States, 158 Fed. Cl.
358, 366 (2022) (citation omitted). The reviewing court must determine whether either (1) the
procurement official’s decision lacked a rational basis, or (2) the procurement procedure
deviated from regular processes. Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282,
1285–86 (Fed. Cir. 2010) (quoting Weeks Marine, Inc., at 575 F.3d at 1358). For a rational basis
claim, “the disappointed bidder bears a heavy burden of showing that the award decision had no
rational basis.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009)
(quotation omitted). An offeror who seeks review on a procedure theory must also “show a clear
and prejudicial violation of applicable statutes or regulation.” Id. (quotation omitted).
The reviewing court must make factual findings from the record evidence as if it were
conducting a trial on the record. Bannum, 404 F.3d at 1353–54; Day & Zimmerman Servs., a
Div. of Day & Zimmerman, Inc. v. United States, 38 Fed. Cl. 591, 597 (1997); RCFC Rule 52.1.
The correct interpretation of a solicitation is an issue of law. Banknote Corp. of Am. v. United
States, 365 F.3d 1345, 1352 (Fed. Cir. 2004). “Ultimately, if a Court finds an agency action is
within its bounds, it is not for the Court to substitute its own judgment for that of the agency.”
CeleraPro, 168 Fed. Cl. at 425 (citing Weeks Marine, 575 F.3d at 1371). Agencies may exercise
discretion when determining which contract best suits the needs of the Government. Logistics
Co. v. United States, 163 Fed. Cl. 542, 553 (2022).
IV.

Discussion

According to Plaintiff, the key issue in this case is NASA Ames’ decision to upwardly
adjust its projected costs without discussion or seeking clarifications. Pl.’s Reply at 1, ECF No.
28. STC asserts Defendant acted irrationally in evaluating its proposal and arbitrarily when it
minimized the price differential between the two proposals. Id. In STC’s view, the Agency’s
upward adjustments tipped the award to AMA, resulting in the Government paying a “nearly
$5,000,000 price premium” for the ASSESS award. Id.
STC’s assertion that Defendant acted unreasonably is not correct. The record shows that
NASA Ames appropriately assessed each proposal with the information the Offerors provided
and properly documented its evaluations. See generally Tab 24 (SEB Evaluation); Tab 25
(Initial Findings Presented to SSA); Tab 33 (SSA Evaluation). It concluded that AMA’s
superiority in the Mission Suitability and Past Performance factors outweighed STC’s lower
13

price. Tab 33 at 2578. NASA Ames reasonably concluded that AMA’s proposal was a better
value for the Government. See id.
The following section will first address STC’s contentions that the Agency erred in its
probable cost adjustments. Then it will explore NASA Ames’ decision not to hold discussions or
seek clarifications. Finally, it will examine the Agency’s evaluation of Mission Suitability and
Past Performance as well as NASA Ames’ best value trade off analysis.
A. NASA Ames Did Not Irrationally Determine the Probable Cost of STC’s
Proposal.
“It is well established that the contracting agencies have broad discretion regarding the
nature and extent of a cost realism analysis, unless the agency commits itself to a particular
methodology in a solicitation.” Mission1st Grp., 144 Fed. Cl. at 211 (internal quotations
omitted). See also Agile Def., Inc. v. United States, 959 F.3d 1379, 1385–86 (Fed. Cir. 2020).
Cost realism analysis is
the process of independently reviewing and evaluating specific elements of each offeror’s
proposed cost estimate to determine whether the estimated proposed cost elements are
realistic for the work to be performed; reflect a clear understanding of the requirements;
and are consistent with the unique methods of performance and materials described in the
offeror’s technical proposal.
Agile Def., 959 F.3d at 1384 (quoting FAR 15.404-1(d)(1)). In other words, the reviewing
agency “asks if a cost estimate is too low.” DynCorp. Int’l, LLC v. United States, 10 F.4th 1300,
1305 (Fed Cir. 2021).
When evaluating a cost realism analysis, “an agency need not perform the analysis with
impeccable rigor to be rational.” Crowley Tech. Management, Inc. v. United States, 123 Fed. Cl.
253, 260 (2015) (cleaned up) (quoting Westech Intern., Inc. v. United States, 79 Fed. Cl. 272,
286 (2007)). A cost realism analysis simply must reflect that an agency considered the
information available. Id. Defendant did just that.
STC asserts that the Agency made multiple unreasonable probable cost adjustments to
STC’s proposal that did not consider its actual or historical submissions. Pl’s Mot. at 8–9. From
STC’s perspective, NASA’s analysis was tainted with impermissible “irrational assumptions”
and “critical miscalculations.” Id. (quoting Crowley Tech. Management, 123 Fed. Cl. at 260). It
was allegedly unreasonable for the Agency to increase STC’s cost by nine percent simply
because the SEB deemed the pricing to be unlikely. Pl.’s Reply at 5. STC’s umbrage extends to
adjustments made to the Division 3 Overhead category, the Business Segment 1 G&A Pool
Adjustment, and the Tier 1 G&A Adjustment.
NASA Ames altered several of STC’s provisions that relied on data from 2022 or 2023,
often because STC did not provide enough documentation. Pl.’s Mot. at 8–13, 15–16. STC used
DCAA approved rates and separate unapproved forecasted rates when it assembled its bid for the
ASSESS contract. Id. at 9; Tab 22d at AR 2106. NASA only had Plaintiff’s historical costs
14

from 2019, 2020, and 2021. See, e.g., Tab 24 at AR 2227 (“STC did not include historical data
for the 2022 year because it was not yet finalized and submitted to DCAA at the time the
proposal was prepared.”); Tab 22d1 at AR 2120. So while STC used numbers from 2022 and
2023 in its calculations, it did not provide those numbers directly to NASA. Pl.’s Mot. at 10.
Instead, STC argues NASA Ames “should have had access to STC’s DCAA approved 2022 final
indirect rate[s],” as well as its provisional 2023 figures. Id. Plaintiffs do not point to anything in
the Administrative Record or any caselaw supporting this assertion. See id.
STC reiterated that its base calculation for the Division 3 Overhead and Business
Segment 1 G&A Rate stemmed from “the increased volume and cost for this proposed effort . . .
and another current contract in Division 3.” Pl.’s Mot. at 11 (emphasis removed) (quoting Tab
22d at AR 2110); Pl.’s Mot. at 12–13. For that factor, NASA determined that STC’s proposal
did not provide “adequate supporting documentation to accept the increased business base at face
value.” Tab 24b at AR 2264. Plaintiff avers that this statement showed that the Agency made an
“irrational assumption that [its] proposed business Base was unsupported” because STC’s
proposal, in its view, corroborated its calculations. Pl.’s Mot. at 11. Further, it argues, NASA
should have been able to access the information STC relied on through the DCAA—or through
discussions or clarifications. Id. at 14. STC had the burden to provide this information: the
Solicitation instructed proposals would be evaluated “on the basis of the material presented and
substantiated” and “not on the basis of what may be implied.” Tab 19 at AR 1469.
Based on the information in the proposals, NASA Ames reasonably determined that
STC’s proposed Cost/Price figures were too low. NASA applied upward cost adjustments to
both AMA’s and STC’s forecasted costs. Tab 24 at AR 2218. Its changes to STC’s figures were
more significant because, unlike AMA, STC’s calculations were missing critical information for
several of its figures. Compare 22d at AR 2106–10 (providing factors impacting STC’s indirect
rate projections) with Tab 21d at AR 1787–93 (explaining factors impacting AMA’s indirect rate
projections). STC recognized that the RFP required actual rates for the three prior years (2019,
2020, and 2021). Tab 22d at AR 2106. And it appreciated the need to explain its reliance on
forecasted 2022 and 2023 provisional direct rates. Id.
STC understood the RFP required it to “disclose the basis of all projections, rates,
percentages, and factors in enough detail to facilitate the [SEB’s] understanding and to
mathematically verify the results of these estimating tools.” Pl.’s Reply at 6 (quoting Tab 19 at
AR 1458). Plaintiff interpreted this to mean that “[t]he RFP did not require . . . particular
documentation.” Id. But Defendant reasonably concluded that the Solicitation did require these
estimates to mathematically verify STC’s numbers.
Given the Agency’s rational reading of the Solicitation, its decision to increase STC’s
forecasted cost and price figures was not arbitrary and capricious. Defendant explicitly states
that many of its adjustments to STC’s costs were made because the Corporation failed to provide
information or documentation to support its forecasts. See, e.g., Tab 24 at AR 2227. AMA
provided this information. See Tab 21d at AR 1787–93 (offering NASA tables of various
forecasted rates for 2022 through 2025 as well as actual historical rates from 2019 through
2021).
15

STC did not provide NASA Ames with enough information to adequately evaluate the
Corporation’s proposal. This mistake left Defendant few options to assess the accuracy of
Plaintiff’s proposed costs—and whether STC’s proposed costs were too low. Even if NASA
Ames could have accessed these figures through DCAA, it was STC’s burden to provide these
numbers in its proposal. Software Eng’g Servs., Corp. v. United States, 85 Fed. Cl. 547, 554
(2009) (quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)) (“Offerors
carry the burden of presenting ‘an adequately written proposal, and an 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.’”). The Solicitation was clear:
offerors needed to explain in detail their price estimating techniques as well as the underlying
information they used to reach these figures. Tab 19 at AR 1457–58. And this information
needed to be in the proposal. Id.
NASA Ames has demonstrated that “it considered the information available and did not
make ‘irrational assumptions or critical miscalculations.’” Dellew Corp. v. United States, 128
Fed. Cl. 187, 194 (2016) (citation omitted). As it noted in the RFP, it compared STC’s proposed
costs and prices to the historical data included in the proposal. As Plaintiff acknowledges,
NASA considered the historical averages included in STC’s proposal and not estimated rates
from 2022 and 2023 that were excluded. See Pl.’s Mot. at 9–16. Thus, the Agency’s upward
probable cost adjustments were reasonable.
B.

The Court Will Not Consider Plaintiff’s New Explanations.

Plaintiff now provides new explanations for several of its cost forecasts. The total for
“Taxes, State income, & Franchise” costs was purportedly lower due to changes in who pays
pass-through taxes. Id. at 10 (acknowledging that STC’s proposal did not contain “this particular
explanation”). Its proposed pool cost for sector allocation was “directly in line with the pool
costs approved by DCAA for 2023.” Id. A clerical error in the payroll additives and fringe
benefits in the historical costs that STC reported to Defendant caused inaccuracies in the
Corporation’s estimated costs in that category. Id. at 15. Plaintiff claims this flawed low figure
led to Defendant’s upward adjustment. Id. See also Tab 44a at AR 3217 (explaining that while
the Agency is now aware STC made a clerical error in the historical data it provided, “STC did
not provide this explanation in its proposal”). Plaintiff also asserts NASA Ames was “irrational
and mistaken” when it assumed travel costs would increase to pre-pandemic levels. Pl.’s Mot. at
14–15. STC argues “it is universally known that remote meetings via Zoom, MS Teams, or
similar applications are much more popular than before the pandemic, negating the need for
business travel.” Id. at 15.
STC did not provide any of this information in its proposal. These are new explanations
that justify how Plaintiff generated the information in its offer. This Court must review NASA’s
decision making based on the administrative record. Day & Zimmerman Servs., 38 Fed. Cl. at
597 (“[T]he court’s review of agency action is, as a general rule, limited to the administrative
record.”) “[S]upplementation of the record should be limited to cases in which the omission of
the extra-record evidence precludes effective judicial review.” Axiom Res. Mgmt., Inc. v. United
States, 564 F.3d 1374, 1380 (Fed. Cir. 2009) (citation omitted). “The purpose of limiting review
16

to the record actually before the agency is to guard against courts using new evidence to convert
the arbitrary and capricious standard into effectively de novo review.” Ace-Fed. Reps., Inc. v.
United States, 150 Fed. Cl. 94, 106 (2020) (citation omitted). The Court cannot consider STC’s
new explanations because they were not provided to NASA when it evaluated Plaintiff’s
proposal.
C.

Discussion and Clarification
1.

Defendant Did Not Need to Engage in Discussions.

Plaintiff further argues that NASA erred by failing to engage in discussions or seek
clarifications. Yet STC does not dispute that agencies generally maintain discretion as to
whether to hold discussions. Pl.’s Reply at 2. See also FAR 15.306. And here, the Solicitation
specifically stated that the Agency did not intend to engage in discussions. Tab 19 at AR 1468.
“The general rule is that once offerors are warned that the agency intends to award without
discussions, absent special circumstances, the contracting officer has the discretion to award
without discussions.” Chenega Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644, 653
(2018); JWK Int’l Corp. v. United States, 279 F.3d 985, 988 (Fed. Cir. 2002) (explaining “absent
bad faith or an abuse of discretion,” the evaluators “need not discuss areas in which a proposal
may merely be improved”).
This discretion is not limitless. Even if a solicitation states that discussions are not
required, “there may be some circumstances in which the government’s failure to hold
discussions would be arbitrary and capricious.” Essex Electro Eng’rs, Inc. v. United States, 458
F.App’x 903 (Fed. Cir. 2011); Day & Zimmerman Servs., 38 Fed. Cl. at 604 (holding that in
some “peculiar circumstances” an agency’s decision not to hold discussions could be irrational).
These circumstances include irregularities in the administrative record or undisclosed evaluation
criteria. Id.; Rig Masters, Inc. v. United States, 70 Fed. Cl. 413, 422 (2006).
Plaintiff suggests that the “nature and magnitude” of the Agency’s cost adjustments
mandated discussions. Pl.’s Reply at 5. Had NASA Ames discussed its concerns about STC’s
price, the Corporation “would have provided the extensive financial backup documentation for
its DCAA rates.” Id. at 4. And, according to STC, the failure to hold discussions “unreasonably
skewed the procurement in favor of AMA and caused the Agency to fail to recognize which
offeror presented the best value.” Id. at 5. Plaintiff’s supposition is mistaken.
The Solicitation stated that the Agency did not plan to hold discussions. Tab 19 at AR
1468. It also instructed potential offerors to explain their cost estimates and provide
documentation and support that would allow the Agency to evaluate those calculations. Id. at
AR 1458. For many of its forecasted costs, STC did not do this. STC’s omission of critical
evaluation data does not constitute the special circumstances that transform an agency’s decision
not to hold discussions into an arbitrary choice. See Rig Masters, 70 Fed. Cl. at 421. NASA
Ames was not obligated to conduct discussions, and Plaintiff may not now “revise deficiencies in
its proposal in light of [Defendant’s] unambiguous warnings.” Id.
17

2.

The Agency Rationally Chose Not to Seek Clarifications.

“Clarifications are limited exchanges, between the Government and Offerors.” FAR
15.306(a)(1). When an award is made without conducting discussions, “offerors may be given
the opportunity to clarify certain aspects of proposals.” FAR 15.306(a)(2) (emphasis added).
Agencies may choose to use clarifications to expound upon unclear elements of a proposal or to
resolve clerical errors. Id. Agencies have discretion over whether to seek clarifications.
Mission1st Grp., 144 Fed. Cl. at 216.
Clarifications “are not to be used to cure proposal deficiencies or material omissions,
materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.”
Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 998 (Fed. Cir. 2018) (quotation omitted). “It
is therefore always reasonable for a [contract evaluator] not to request clarifications of a proposal
that is materially deficient.” Mission1st Grp., 144 Fed. Cl. at 216 (holding that it was reasonable
for a reviewing agency to decline to hold discussions about a violative proposal).
Here, STC did not comply with the Solicitation requirements. The Agency warned
potential offerors that they needed to “explain in detail all pricing and estimating techniques” in
their proposals. Tab 19 at AR 1457. That included disclosure of both the basis of all its
projections and the “rates, ratios, percentages, and factors in enough detail to facilitate [the
Agency’s] understanding and ability to mathematically verify the results of these estimating
tools.” Id. at AR 1458. Defendant instructed AMA and STC that their proposals would be
evaluated based on “the material presented and substantiated in the proposal[s] and not on the
basis of what may be implied.” Id. at 1469.
STC violated every one of these instructions. Chiefly, it did not provide Defendant with
its proposed 2022 numbers upon which it based much of its forecasted rates. Defendant did not
need to seek clarifications to cure the information deficiencies in STC’s proposal.
D.

Mission Suitability Evaluation

Plaintiff claims that NASA Ames unreasonably and irrationally assigned four weaknesses
to STC’s proposal under Mission Suitability. Pl.’s Mot. at 19–21. When reviewing an agency’s
action, the test is whether “the contracting agency provided a coherent and reasonable
explanation of its exercise of discretion.” Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001) (quotation omitted).
1.

Plaintiff Erroneously Conflates the Agency’s References to
Management.

STC contends that the agency erred by assigning a weakness under the management
approach subfactor for failing to demonstrate sufficient records management capabilities. Pl.’s
Mot. at 19–20; Tab 25 at AR 2306 (assigning weakness); Tab 37 at AR 2604 (STC’s debriefing).
But the Agency determined that this was a weakness in STC’s proposal because “there [was] no
description of the coordination of all entities/personnel to perform the Records Management
requirements . . . . The Offeror did not adequately address [the PWS] requirements which would
18

likely lead to non-compliance with NASA and Government Regulations regarding Records
Management.” Tab 25 at AR 2311. STC’s “lack of a proposed organization structure” coupled
with its “lack of a detailed explanation of how [it would] coordinate all entities/personnel
responsible for accomplishing these PWS requirements” “clearly demonstrate[d] how the Offeror
will perform these programmatic and technical contractual requirements.” Id. at AR 2312. And
it would lead to “critical gaps in required contract management functions which increases the
risk of unsuccessful contract performance.” Id. See also id. at AR 2310 (listing the five PWS
requirements for which STC’s proposal fell short). This is a coherent and reasonable
explanation.
Plaintiff also argues that the Agency was “internally inconsistent.” Pl.’s Mot. at 19. It
claims that the Agency “found that [Capability Maturity Model Integration] certification showed
that STC has a robust records management system in place.” Id. In fact, NASA Ames found
that STC had a certified “task order management process.” Tab 25 at AR 2306, 2308. This
process would “decrease risks in service, product, and/or software development,” and has
nothing to do with the Agency’s distinctly different use of records management. Id. at AR 2308.
Defendant did not evaluate STC arbitrarily under subfactor A.
2.

NASA Ames followed the Solicitation When it Determined STC’s
Proposal Had Three Weaknesses Under the Technical Approach
Subfactor.

STC also contends that the Agency erred in assigning the Corporation three weaknesses
under technical approach. Pl.’s Mot. at 20–21. “[A]gency technical evaluations, in particular,
should be afforded a greater deference by the reviewing courts” because technical ratings
“involve discretionary determinations” that courts should not second guess. Tech. Sys., Inc. v.
United States, No. 24-955, 2024 WL 4676205, at *6 (Fed. Cl. Oct. 31, 2024) (quoting E.W. Bliss
Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)). See also CSC Gov’t Sols. LLC v.
United States, 129 Fed. Cl. 416, 434 (2016). When analyzing an agency’s technical
examination, reviewing courts primarily consider whether the agency followed the criteria set
out in the solicitation. Anders Constr. Inc. v. United States, 171 Fed. Cl. 300, 309 (2024).
The RFP instructed that an offeror’s answers to the sample Task Orders would “be
evaluated for demonstration of its understanding of sample task order requirements,
completeness, and effectiveness.” Tab 19 at AR 1474. See also id. at AR 1448–52 (listing
requirements for Sample Task Order 1 and 2). STC first contends that it should not have
received a weakness in response to Sample Task Order 1. Pl.’s Mot. at 19–20. The Agency
decided STC’s description of proposed aerodynamic and aerothermodynamic databases was
inconsistent based on its claim that it used a [***] database. Tab 25 at AR 2334–35. The
evaluator explained that STC’s choice to use a [***] database meant its proposed approach
“contain[ed] an inconsistency that results in a lack of a clear approach to perform the [Task
Order’s] requirements.” Id. at AR 2334. This demonstrated “a lack of understanding” of the
requirements. Id. at AR 2335. NASA reasonably concluded that this reflected negatively on
Plaintiff’s understanding of the Task Order’s technical requirements. Id.
19

Second, Plaintiff argues that NASA Ames should have combined the two weaknesses it
received under the second Task Order, leaving Plaintiff with only one weakness for that order.
Pl.’s Mot. at 21. Defendant reasonably listed these two weaknesses separately because they
pertained to two different requirements in the Task Order. Tab 25 at AR 2336–38 (clarifying
that STC did not adequately address the two deliverables under the Task Order). There is no
basis to second guess Defendant’s determinations. Defendant acted rationally in its technical
evaluation of the STC proposal. STC may disagree with NASA Ames’ interpretations of the
Corporation’s technical approach, but that does not make Defendant’s determinations arbitrary or
capricious. Software Eng’g Servs., 85 Fed. Cl. at 554.
E.

Past Performance Evaluation

Agencies are afforded broad discretion in evaluating past performance. Comput. Sci.
Corp. v. United States, 51 Fed. Cl. 297, 319 (2002). When a bid protest involves performance
standards, a court’s deference to an agency’s decision is even higher. Overstreet Elec. Co. v.
United States, 59 Fed. Cl. 99, 117 (2003). “[The protestor] must overcome a triple whammy of
deference.” Id. See also Alisud-Gesac Handling – Servisair 2 Scarl v. United States, 161 Fed.
Cl. 655, 688 (2022), aff’d, No. 2023-1087, 2024 WL 3452957 (Fed. Cir. 2024). A court should
not substitute its judgment for the agency’s. DynCorp Int.’l, 10 F.4th at 1311. To prevail on an
unequal treatment claim, the protestor must show that its proposal received a lower rating than
other offers that were “substantively indistinguishable.” Off. Design Grp. v. United States, 951
F.3d 1366, 1372 (Fed. Cir. 2020) (citations omitted).
STC alleges that NASA Ames unreasonably and disparately evaluated its past
performance rating for its three prior contracts. Pl.’s Mot. at 21–24. Since STC’s AEMMS and
AMA’s ESTRAD contracts were both predecessor contracts to the ASSESS award, Plaintiff
claims the Agency’s unequal ratings of the two contracts was irrational. Id. at 21–22. Plaintiff
argues the SEB and the SSA should have found STC’s AEMMS award “very highly pertinent”
instead of the lessor score of “highly pertinent.” Id. at 22. Compare Tab 26a (rating AMA) at
AR 2390 with Tab 26b at AR 2412 (rating STC). Plaintiff reiterated that the AEMMS contract
“represents roughly 50% of the total projected value of the ASSESS procurement.” Pl.’s Reply
at 12–13. In its view, the ESTRAD contract covered fewer requirements than the AEMMS
award, yet the ESTRAD contract received a higher ranking. Pl.’s Mot. at 24. The Corporation
also alleges that Defendant erred in its assessment of STC’s two other contracts. Id. at 24–25.
That NASA Ames evaluated AMA’s ESTRAD contract more favorably than STC’s
AEMMS contract does not inherently indicate impermissible disparate treatment. Taahut v.
United States, 849 F.App’x 260, 267 (Fed. Cir. 2021) (stating that a determination that one
offeror’s past performance was less relevant than a competitor’s similar past performance did not
constitute unequal treatment). NASA Ames documented its finding that the projects were
substantively distinguishable based on the information provided in the Offerors’ proposals.
Based on the information in the Past Performance Volume, NASA Ames found the
ESTRAD contract received seventeen excellent ratings, while AEMMS received only fifteen
excellent ratings. Tab 25 at AR 2350, 2356–57. The SEB and SSA could not evaluate two areas
20

of the AEMMS contract because they “did not have adequate knowledge of performance.” Id. at
AR 2357. These two areas still received excellent ratings despite the information gap. Id. The
remaining PWS areas received very good rankings. Id. at AR 2356–57. Here, STC’s and
AMA’s performances were treated differently because STC failed to provide the Agency with all
the relevant information it needed in the past performance section—a recurring theme of STC’s
proposal. The Corporation’s arguments about the assessment of its other two contracts suffer
from the same flaws. See Tab 25 at AR 2350–59. NASA Ames’ evaluation of STC’s past
performance was not arbitrary or capricious.
F.

NASA Ames’ Best Value Tradeoff Analysis Was Not Arbitrary and Capricious.

STC alleges that NASA failed to meaningfully consider price, noting that the SSA did
not explain why it found the difference in price between STC’s and AMA’s contracts
“marginal.” Pl.’s Mot. at 26 (quoting Tab 33 at AR 2578). This Court accords agencies “an
even greater degree of discretion when the award is determined based on the best value to the
agency.” Glenn Def. Marine, 720 F.3d at 908 (citing E.W. Bliss Co. v. United States, 77 F.3d at
449). FAR 15.308 requires that the SSA’s decision “shall be based on a comparative assessment
of proposals against all source selection criteria in the solicitation” and that the “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.” Thalle/Nicholson Joint Venture v. United States, 164 Fed. Cl. 224, 235 (2023)
(quoting FAR 15.308). The tradeoff process “allows the Government to accept other than the
lowest priced proposal” if “the perceived benefits of the higher priced proposal shall merit the
additional cost.” FAR 15.101-1(c). The Court reviews NASA Ames’ best value analysis to
determine whether the Agency acted reasonably within its discretion. Thalle/Nicholson, 164
Fed. Cl. at 235.
Under the Solicitation, Cost/Price was the least important factor. Tab 19 at AR 1479. As
explained above, Defendant’s analysis of the Mission Suitability and Past Performance factors
was well documented and explained the Agency’s decision-making process. And the upward
adjustments to STC’s proposals were not impermissible or irrational. The SSA relied on all of
this in its best value tradeoff analysis. See Tab 33.
In explaining its decision, the evaluator did describe the difference between the price of
STC’s and AMA’s proposals as marginal. Tab 33 at AR 2578. But it also explained that its
decision was based on the SEB’s analysis of the two proposals:
The SEB provided detailed explanation and analysis to support these adjustments[,] and I
was confident in the resulting probable cost/price numbers. Ultimately, Cost/Price is the
least important evaluation factor, and I found that the slightly lower probable cost of the
STC proposal not to be a notable advantage to the Government.
Id. AMA performed better than STC on the Mission Suitability factor, and AMA’s proposal was
also slightly stronger on the Past Performance factor. Id. The SSA decided that “the substantial
Mission Suitability advantages offered by the AMA proposal, combined with its Very High
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Level of Confidence rating for Past Performance, with only a slightly higher probable cost,
represent the best value to the Government.” Id.
Taken together, STC did not show that its offer provided the best value to Defendant.
Under the Solicitation, Plaintiff’s lower ratings on Mission Suitability and Past Performance
outweighed its proposal’s lower cost. Plaintiff has not met its heavy burden to establish that
NASA Ames was unreasonable when it concluded that the five percent cost differential on a
multi-million-dollar contract was acceptable. Cost/Price was the least important factor in its
decision, and AMA’s proposal was substantively better. Id. The Administrative Record
provides ample rationale for the Agency’s decision to award the ASSESS contract to AMA.
AMA’s proposal represented the best value to the Government. Id. STC omitted critical
information from its proposal. NASA Ames permissibly determined that AMA’s proposal was
better than STC’s offer.
V.

STC is Not Entitled to Injunctive Relief.

STC asks the Court to enact a permanent injunction stopping the contract award to AMA.
Pl.’s Mot. at 28–30. But “injunctive relief is appropriate based on the plaintiff’s success on the
merits, irreparable harm to the plaintiff, the balance of hardships to the parties, and the public
interest in an injunction.” Newimar S.A. v. United States, 160 Fed. Cl. 97, 120–21 (2022), aff’d,
No. 2022-1949, 2023 WL 8534614 (Fed. Cir. 2023). See also PGBA, LLC v. United States, 389
F.3d 1219, 1228–29 (Fed. Cir. 2004). Because STC did not succeed on the merits, the Court
denies its request for injunctive relief.
VI.

Conclusion

For these reasons, Plaintiff’s Motion for Judgment on the Administrative Record (ECF
No. 25) is DENIED. Defendant’s and Intervenor’s Cross-Motions for Judgment on the
Administrative Record (ECF No. 26; ECF No. 27) are GRANTED. The Clerk is directed to
enter judgment accordingly.
IT IS SO ORDERED.

s/ Carolyn N. Lerner
CAROLYN N. LERNER
Judge

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