ITEGRITY, INC. v. USA

Filing 35

UNSEALED UNREPORTED OPINION. Signed by Senior Judge Edward J. Damich. (lp1) Service on parties made.

No. 24-1662C
(Filed Under Seal: December 20, 2024)
Reissued: January 7, 2025 1
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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And
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ATTAINX INC.,
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Defendant-Intervenor. *
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ITEGRITY, INC.,

Elizabeth N. Jochum, Washington, D.C., for Plaintiff, with Shane M. Hannon, of counsel.

Kyle S. Beckrich, Trial Counsel, United States Department of Justice, Civil Division, with whom
were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director,
and Douglas Mickle, Assistant Director, for the Government. Florence Bridges, Senior Attorney, U.S.
Department of Commerce, of counsel.
Daniel J. Strouse, Arlington, VA, for Intervenor.

OPINION AND ORDER
DAMICH, Senior Judge

1

The Court issued this opinion under seal on December 20, 2024, and the Court gave the
parties fourteen days to propose the redaction of competition-sensitive, proprietary, confidential,
or otherwise protected information. The Plaintiff filed its proposed redactions, to which the
Government and Intervenor do not oppose. Neither the Government nor Intervenor provided any
redactions. Thus, the Court adopts the Plaintiff’s redactions and issues the redacted opinion
unsealed. Redactions are indicated with “XXXX.”

In this post-award bid protest, ITegrity, Inc., the incumbent contractor, challenges the
National Oceanic and Atmospheric Administration’s (“NOAA” or the “Agency”) Past
Performance Evaluation. Specifically, Plaintiff alleges that the Agency’s evaluation of its Past
Performance minimized its performance on the incumbent contract and downgraded its
confidence rating based on less relevant past performance references. This, argues Plaintiff, was
irrational, arbitrary, or capricious and effectively precluded it from receiving the award.
ITegrity timely filed its Motion for Judgment on the Administrative Record on November
8, 2024, seeking a permanent injunction preventing NOAA from proceeding with the contract
award and asks the Court to set aside NOAA’s award. The Government and Intervenor filed their
respective Responses and Cross-Motions for Judgment on the Administrative Record. The
Motions are fully briefed, and oral argument is unnecessary.
For the reasons set forth below, the Court holds that NOAA properly documented its
decision and that its analysis is reasonable. Therefore, the Court GRANTS the Government’s
and Intervenor’s Cross-Motions for Judgment on the Administrative Record and DENIES
ITegrity’s Motion for Judgment on the Administrative Record.
BACKGROUND 2
I.

The Solicitation

On October 13, 2023, NOAA issued a Solicitation seeking Assessment and Authorization
(“A&A”) services for NOAA’s National Weather Service (“NWS”). The Solicitation
contemplates award of a single Blanket Purchase Agreement (“BPA”) to a contractor who would
conduct IT security controls assessments, including for cloud and on-premises systems within a
parent/child organizational model; continuously monitor IT systems; conduct penetration testing;
perform compliance reviews; and create final Assessment packages and reports. AR 290-91.
The BPA is in support of NWS’s mission to provide prompt, reliable, and high-quality
annual assessments of all NWS Federal Information Security Modernization Act (FISMA)
systems. AR 289. The services provided under the contract are critical to improve program
efficiency, effectiveness, and consistency by providing prompt, reliable, repeatable, and highquality annual assessment of all NWS systems supporting NOAA’s risk management framework.
AR 289. The BPA was to be performed over a one-year base period and four one-year option
periods. AR 292. Unlike the previous contract, for which ITegrity was the incumbent, this BPA
also involves call orders outside NWS, including non-NWS systems throughout NOAA. AR
289, 292.

2

No. 22.

The facts in the background are derived from the administrative record (“AR”). ECF
2

II.

The Solicitation’s Evaluation Factors

The Solicitation states that Offerors were required to submit three volumes upon which
the evaluation would be based: (1) Non-Price Business Information; 3 (2) Non-Price Factors; and
(3) Price. AR 389-90.
The Solicitation states that an Offeror’s price is its overall price for the Base Contract and
for the four option years. AR 399. The Solicitation provides that the Agency would evaluate
price to determine if it was fair and reasonable. Id.
The volume most pertinent to this protest, Volume II: Non-Price Factors, includes two
non-price factors: Factor A: Technical Approach, and Factor B: Past Performance. Id.
A. Factor A: Technical Approach
The Technical Approach factor addressed whether “the vendor provides a sound,
compliant approach that meets the requirements of [Performance Work Statement] Section 4.”
AR 398. Offerors were encouraged to demonstrate their knowledge of the PWS’ functional
areas. Id. Offerors were also required to show their qualifications under several industry
standards. Id. Finally, offerors had to propose Key Personnel that met the Solicitation’s
minimum qualifications. Id.
B. Factor B: Past Performance
In considering past performance, the Solicitation provided that the factor “will be
evaluated based on contracts relevant in terms of size, scope, and complexity to the instant
requirement.” AR 398. “The Government's evaluation of similarity is subjective.” Id. In
submitting a proposal, offerors were to include up to but not more than three contracts to be
considered. AR 394.
Once an offer was determined to be technically acceptable, the Technical Evaluation
Team (“TET”) would evaluate the offeror’s past performance. AR 397. The TET would first
assign a relevancy rating to the past performance reference:

3

The non-price business information volume is not relevant to this protest. Thus, the
Court does not need to provide further details regarding this volume.
3

Rating

Definition

Very Relevant

Past/present performance effort involved essentially the same magnitude
of effort and complexities this solicitation requires.

Relevant

Past/present performance effort involved much of the magnitude of
effort and complexities this solicitation requires.

Somewhat Relevant

Past/present performance effort involved some of the magnitude of effort
and complexities this solicitation requires.

Not Relevant

Past/present performance efforts involved little or none of the magnitude
of effort and complexities this solicitation requires.

AR 2085. If a past performance reference was deemed not relevant, it would not be considered
in evaluating the offeror’s overall past performance assessment. AR 398.
Based on the TET’s assessment of recency, relevancy, and quality of an offeror’s past
performance, the TET then assigned an overall confidence assessment/rating to that offeror’s
past performance. AR 2085-86. The TET would assign an adjectival rating of “High
Confidence,” “Some Confidence,” “Low Confidence,” “No Confidence,” or “Unknown
Confidence (Neutral).” Id. Relevant to this protest, a high confidence rating indicated:
Based on the vendor’s recent/relevant past performance record, the Government has high
confidence that the vendor understands the requirement, proposes a sound approach, and
will be successful in performing the required effort with little or no Government
intervention.
AR 2085. Some confidence, on the other hand, indicated:

Id.

Based on the vendor’s recent/relevant performance record, the Government has some
confidence that the vendor understands the requirement, proposes a sound approach, and
will successfully perform the required effort with some Government intervention.

The Solicitation further stated:
The Government will use its discretion to determine the sources of Past
Performance information used in the evaluation, and the information may
be obtained from references provided by the vendor, the agency’s
knowledge of contractor performance, other Government agencies or
commercial entities, or Past Performance databases. If a vendor does not
have a history of relevant contract experience, or if Past Performance
information is not available, the vendor will receive a neutral Past
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Performance rating.
Amendment 0001 - Attachment D – Relevant Project Form is provided for
vendors to submit the information requested for each Past Performance
record submitted. In the description of work, vendors must provide a
detailed explanation demonstrating the similarity of the contracts in terms
of size, scope and complexity, to the requirements of this RFQ for purposes
of relevancy. The Government reserves the right to contact customers
identified in the form and solicit further information about performance in
regard to quality, timeliness and cost. Other related Past Performance
information may be sought and used for evaluating completeness and
accuracy of the vendor’s quote. Past Performance information may be
obtained from a variety of sources including other Government agencies or
commercial entities, the agency’s knowledge of vendor performance, or
Past Performance databases.
AR 2084-85.
C. The Solicitation’s Source Selection Tradeoff
The Solicitation adopted a “Technically Acceptable–Past Performance/Price Tradeoff”
source selection procedure. AR 397. Thus, in making an award the solicitation provided that:
“For those offerors who are determined to be technically acceptable, tradeoffs will be made
between past performance and price, with past performance being considered significantly more
important than price, though price remains an important consideration in the best value award
decision.” Id.
The Solicitation explains that “Past Performance will be considered significantly more
important than . . . Price” and that NOAA “may make an award to other than the lowest-priced
vendor . . . if the source selection official determines that to do so would result in best value to
the government.” Id.
III.

NOAA’s Evaluation and Award

NOAA received 21 proposals, including one from ITegrity and one from AttainX, which
are the only two Offerors relevant to this protest. AR 2086-87. Both ITegrity and AttainX were
rated “acceptable” for technical capability, and NOAA thus evaluated both offeror’s past
performance references. Id.
A. ITegrity’s Evaluation
ITegrity submitted three past performance references. In support of its references each
offeror was to complete the Relevant Project Form, Attachment D. Yet, ITegrity failed to
comply and instead submitted an incomplete form. The TET noted that “upon review it was
found that only the first eight past performance questions out of the 19 required questions were
answered and submitted by ITegrity.” AR 2188, 2195.
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First, ITegrity submitted its incumbent contract for the instant procurement (“PP1”).
AR 2186. The TET determined that this reference was “very relevant” and that its quality was
“very good.” Id. The TET, however, noted that the incumbent contract was smaller than the
current procurement, the latter involving a higher overall dollar volume and more full-time
employees. AR 2191. Even so, the TET offset these differences “by the similarity in
requirements, and exhibits its relevancy as a basis for confidently demonstrating the capability
to meet the intricate demands of the A&A effort.” Id. Given that ITegrity submitted an
incomplete Relevant Project Form there were areas with missing information. However, as
ITegrity is the incumbent, the TET was able to use personal knowledge for the vendor’s
demonstrated past performance in this instance to evaluate this reference in its entirety. AR
2192. The TET concluded that “[t]he scope and complexity of this reference combined with
the quality ratings substantially increase the Government’s confidence in the vendor’s ability to
successfully perform the required effort and exhibit its relevance as a basis for confidently
demonstrating the capability to meet the demands of the A&A effort.” Id.
ITegrity’s second past performance reference was for a contract performed by its
subcontractor for the Department of Homeland Security(“DHS”) (“PP2”). AR 2192. After
review, the TET found “the scale in terms of contract value and team size is similar to the
A&A effort, [but the] the lack of similarity in requirements diminishes its relevancy as a basis
for confidently demonstrating the capability to meet the more substantial demands of the A&A
effort.” Id. This led the TET to conclude that PP2 “does not translate to the technical
capabilities required to successfully fulfill the scope of the instant acquisition.” Id. Thus, the
TET determined that the contract was not a relevant past performance reference. Id.
Accordingly, the second reference was not further evaluated for quality purposes. AR 2191.
Finally, ITegrity’s third past performance reference was another contract with DHS
performed by its subcontractor (“PP3”). AR 2194-97. Again, as ITegrity submitted an
incomplete Relevant Project Form, the TET noted that some past performance information was
again missing. The TET determined that although this contract involves many similar tasks as
the instant procurement, the DHS contract “did not include penetration testing” or “mention . . .
experience with parent/child organization models,” both of which are essential to the instant
procurement. AR 2196. Accordingly, the TET determined that the third past performance
reference was somewhat relevant. AR 2197. With respect to the third reference’s quality, the
TET noted that the contractor had been rated “Satisfactory” on all areas assessed in the
Contractor Performance Assessment Reporting System (“CPARS”). AR 2190-91. The TET
determined that due to the lack of experience in efforts required in the instant procurement, the
reference “diminishes the Government’s confidence in the vendor’s ability to successfully
perform the effort.” AR 2197.
Having concluded that ITegrity submitted one past performance reference that was highly
relevant with a very good quality rating, one reference that was not relevant (and thus not further
considered), and one that was somewhat relevant with a satisfactory quality rating, the TET
determined that ITegrity’s past performance record leads to “some confidence” that ITegrity
“understands the requirement, proposes a sound approach, and will be successful in performing
the contract even with some Government intervention.” AR 2191.
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B. AttainX’s Evaluation
Like ITegrity, AttainX also submitted three past performance references – one for its own
contract and two for contracts of its subcontractors. AR 2166. AttainX’s first reference was a
contract in which AttainX provided support for “Cybersecurity and A&A initiatives for
systems[] and applications across all of Air Force Recruiting Services.” AR 2167. Although this
contract was smaller in size than the instant procurement (like the incumbent contract submitted
by ITegrity), the TET determined that the contract was very relevant because it involved
“essentially the same magnitude of effort and complexity [that] this solicitation requires.” AR
2171. In CPARS, AttainX received an “exceptional” rating in all areas assessed, and the CPARS
narrative extensively praised AttainX’s performance. Id. Accordingly, the TET determined that
“the scope and complexity of this reference, combined with the exceptional quality ratings,
substantially increase the Government’s confidence in [AttainX’s] ability to successfully perform
the required effort.” Id.
AttainX’s second past performance reference, a contract performed by one of AttainX’s
subcontractors, involved “support for the NWS FISMA and A&A Services Program.” AR 2172.
Once again, the size of the contract was smaller than the instant procurement, but the TET
determined the reference was very relevant because it “involved essentially the same magnitude
of effort and complexities [that] this solicitation requires.” AR 2174-75. As to quality, the
vendor was rated “very good” in all areas assessed, with extensive narrative statements
confirming the high quality of the work performed. AR 2175. Like AttainX’s first reference,
this reference “substantially increase[d] the Government’s confidence in [AttainX’s] ability to
successfully perform the required effort.” Id.
Finally, AttainX’s third past performance reference was a contract performed by another
one of its subcontractors that “provide[d] cyber security defense services to the Department of
Education Federal Student Aid Cybersecurity Operations Support.” Id. This contract was
greater in size than the instant procurement, and “involved essentially the same magnitude of
effort and complexities [that] this solicitation requires.” AR 2178. The TET then determined the
reference was very relevant to the instant acquisition. Id. The contractor received all
“satisfactory” ratings in CPARS for this contract, and the narrative statements indicated that the
contractor performed its contractual requirements as requested. AR 2179. Like AttainX’s other
past performance references, the TET determined that “the scope and complexity of this
reference combined with the quality ratings substantially increase the Government’s confidence
in [AttainX’s] ability to successfully perform the required effort.” Id.
When AttainX’s three past performance references were viewed in totality, the TET
determined that AttainX’s past performance record leads to “high confidence” that AttainX
“understands the requirement, proposes a sound approach, and will be successful in performing
the contract, even with little to no Government intervention.” AR 2180.
After its analysis and review of all offers, the TET recommended that the Agency issue
an award to AttainX. AR 2194. The ultimate award decision, however, lay with the Source
Selection Official (“SSO”).
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C. The SSO’s Decision and Award
The SSO concurred with the TET’s technical evaluations of the offerors. AR 2260.
Based on the results from the technical evaluation, past performance record, and price
submitted, the SSO compared the following ratings between ITegrity and AttainX:
ITegrity
AttainX

Technical Approach

Past Performance

Price

Acceptable
Acceptable

Some Confidence
High Confidence

XXXXXXX
$21,551,388

AR 3506. In an extensive and thorough analysis, the SSO determined that AttainX’s “more
relevant/higher confidence past performance references” warranted the approximately
XXXXXX price premium as compared to ITegrity. AR 2285.
Specifically, NOAA noted the “differences in the scope and complexity” of
ITegrity’s and AttainX’s past performance references. AR 2282. ITegrity only submitted
one reference that was deemed very relevant, and even that contract was smaller than the
instant acquisition in terms of contract value and team size. Id. Comparably, AttainX
submitted three very relevant references, and viewed in totality, those references involved
“a broader scope and higher complexity” than the instant acquisition. Id. Further, the fact
that AttainX submitted very relevant past performance references for its subcontractors
demonstrated that AttainX proposed a “robust team.” Id.
In comparing AttainX’s proposal to ITegrity’s, the SSO noted all three of AttainX’s
Past Performance references received a “Very Relevant” rating. Id. In contrast, only one of
two of ITegrity’s Past Performance references received a “Very Relevant” rating. This
difference “distinguished [ITegrity] from AttainX.” Id. The SSO found AttainX
“outperforms” ITegrity and determined AttainX “is better positioned to successfully meet
the demands of the A&A effort as well as the NOAA wide effort and deliver quality
results.” AR 2283.
Even though AttainX proposed a higher price, AttainX’s “combined technical
acceptability and more relevant/higher confidence past performance references are more
beneficial to the government and [] therefore worth the price premium of XXXXXX.” AR
2285. Additionally, ITegrity submitted only one somewhat relevant reference from its
subcontractor, demonstrating that its subcontractor is more limited than AttainX’s
subcontractors. AR 2282-83.
The SSO then concluded that “while both ITegrity, Inc. and AttainX, Inc. received
positive evaluations for their past performance efforts, there are differences in the scope,
specific capabilities, and outcomes.” AR 2283. The SSO concluded “it is in the best
interest of the Government to make an award to AttainX.” AR 2286. Accordingly, NOAA
awarded the contract to AttainX.

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IV.

Procedural History

NOAA informed ITegrity on June 14, 2024, that it was not selected for award. AR 237895. ITegrity timely filed a post-award protest at the Government Accountability Office
(“GAO”). AR 2399.
At the GAO, ITegrity alleged that NOAA “unreasonably and unequally evaluated its and
AttainX’s quotations under the past performance factor and conducted a flawed best-value
tradeoff.” Id. Specifically, ITegrity argued that NOAA “should have given greater weight to its
first past performance reference in arriving at its overall past performance rating” and that its
overall rating should not have been “downgrade[d]” by its second and third references. AR
3507-08.
The GAO did not find ITegrity’s arguments convincing, finding that NOAA “was under
no obligation to conduct an evaluation in a light most favorable to the protester” and that the
solicitation was clear that NOAA “could consider and weigh the references a vendor chose to
submit.” AR 3508. The GAO determined that ITegrity’s arguments “amount to nothing more
than disagreement with the weight [NOAA] gave ITegrity’s first reference” and that such
disagreement is not enough to set aside the award. Id.
Next, the GAO disagreed with ITegrity’s contention that NOAA erred in determining that
ITegrity’s second past performance reference was not relevant. AR 3509. Indeed, the GAO
provided several examples of how the work performed under the second past performance
reference differed from the work that would be performed under the BPA. AR 3509-10.
Accordingly, the GAO determined that NOAA reasonably evaluated ITegrity’s past performance
record.
The GAO also addressed ITegrity’s argument that NOAA “unequally evaluated
AttainX’s and ITegrity’s third past performance references.” AR 3510. The GAO disagreed
with ITegrity’s contentions and found that the “the differences in the overall confidence ratings
resulted from the relevance of the references submitted, which was based primarily on the size,
scope, and complexity of the references.” AR 3511. Accordingly, because AttainX submitted
more relevant references, NOAA reasonably assigned a higher confidence rating to AttainX than
ITegrity. AR 3511. In short, the GAO determined that an agency’s evaluation of past
performance is a matter of discretion, and that ITegrity failed to raise a challenge that showed
more than mere disagreement with NOAA’s reasonable judgment. AR 3508-11.
The GAO denied ITegrity’s protest on September 26, 2024. AR 3504-11. ITegrity then
filed its protest here.
STANDARD OF REVIEW
In a bid protest, the Court “review[s] the agency’s decision pursuant to the standards set
forth in section 706 of Title 5,” the Administrative Procedure Act (“APA”). 28 U.S.C. §
1491(b)(4); see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir.
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2004). An APA challenge requires showing that the agency action in question is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.
§706(2)(A); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 n.5 (Fed. Cir. 2001). Accordingly, "[a] bid award may be set aside" if (1) "the procurement
official's decision lacked a rational basis" or (2) "the procurement procedure involved a violation
of regulation or procedure." WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377
(Fed. Cir. 2020) (quoting Impresa, 238 F.3d at 1332). The APA also requires that "due account
shall be taken of the rule of prejudicial error." 5 USC 706. So, "[t]o prevail in a bid protest, a
protestor must show a significant, prejudicial error in the procurement process." WellPoint, 953
F.3d at 1377 (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.
Cir. 1999)); see also Bannum, 404 F.3d at 1351.
In reviewing the agency’s procurement decisions, the Court does not substitute its
judgment for that of the agency. Redland Genstar, Inc. v. United States, 39 Fed. Cl. 220 (1997);
Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997); see also M.W. Kellogg Co. v.
United States, 10 Cl. Ct. 17, 23 (1986) (holding that “deference must be afforded to an agency’s .
. . procurement decisions if they have a rational basis and do not violate applicable law or
regulations.”). The disappointed bidder “bears a heavy burden,” and the contracting officer is
“entitled to exercise discretion upon a broad range of issues confronting [her].” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)
(citations and quotes omitted). This burden “is not met by reliance on [the] pleadings alone, or
by conclusory allegations and generalities.” Bromley Contracting Co. v. United States, 15 Cl. Ct.
100, 105 (1988); see also Campbell v. United States, 2 Cl. Ct. 247, 249 (1983). A procurement
decision is rational if “the contracting agency provided a coherent and reasonable explanation of
its exercise of discretion.” Impresa, 238 F.3d at 1333. But “that explanation need not be
extensive.” Bannum, Inc. v. United States, 91 Fed. Cl. 160, 172 (2009) (citing Camp v. Pitts,
411 U.S. 138, 142-43 (1973)).
In reviewing an evaluation of past performance information in a negotiated procurement,
“the greatest deference possible is given to the agency – what our Court has called a ‘triple
whammy of deference.’” Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004) (quoting
Overstreet Elec. Co. v. United States, 59 Fed. Cl 99, 117 (2003)); see also Glenn Def. Marine
(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 909 (Fed. Cir. 2013) (agencies are afforded
“broad discretion” in past performance evaluations); Garrett Electronics, Inc. v. United States,
163 Fed. Cl. 632, 666 (2023) (noting that a protester’s challenge to an agency’s past performance
evaluation “faces a steep, uphill climb” as such evaluations are entitled to “the greatest deference
possible”). “[E]valuation of experience and past performance, by its very nature, is subjective . . .
and an offeror’s mere disagreement with an agency’s evaluation judgments does not demonstrate
that those judgments are unreasonable.” Alisud - Gesac Handling - Servisair 2 Scarl v. United
States, 161 Fed Cl. 655, 668 (2022). Further, procurement officials are usually “given great
discretion in determining what references to review in evaluating past performance.” SDS Int'l v.
United States, 48 Fed. Cl. 759, 771 (2001) (citation omitted). “Thus, when evaluating an
offeror’s past performance, the [contracting officer] ‘may give unequal weight,’ or no weight at
all, ‘to different contracts when [the contracting officer] views one as more relevant than
another.’” Am. Auto Logistics, LP v. United States, 117 Fed. Cl. 137, 186 (2014) (citation
omitted).
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DISCUSSION
I.

NOAA’s Past Performance Evaluation was Reasonable and Consistent with
the Solicitation.

ITegrity challenges the past performance evaluation NOAA conducted in awarding the
contract to AttainX. As stated previously, NOAA evaluated each past performance reference
submitted by ITegrity. Out of the three references, NOAA deemed two relevant. For the two
references it deemed relevant, the Agency evaluated the quality of each contract’s work. As a
result, NOAA concluded that ITegrity’s past performance record leads to “some confidence” that
ITegrity “understands the requirement, proposes a sound approach, and will be successful in
performing the contract even with some Government intervention.” AR 2191. This rating,
according to ITegrity, is unreasonable.
In support, ITegrity argues that given its exceptional performance on the incumbent
contract, which ITegrity maintains is “nearly identical” to the instant procurement, the TET’s
evaluation should have resulted in a “High Confidence” rating. However, the TET did not give
out individual ratings, but instead, reviewed and rated ITegrity’s three past performance
references “in their totality.” AR 2191. Likewise, the SSO assigned ITegrity a “Some
Confidence” rating only after considering ITegrity’s references “holistically.” AR 2271. The
Agency’s error, according to ITegrity, is that the terms of the Solicitation “never suggested” that
NOAA would use all submitted references to determine a past performance rating. Pl. Resp. 9.
Yet the Solicitation explicitly states that “information may be obtained from references provided
by the vendor” to evaluate past performance. AR 395. Furthermore, the Solicitation provided
that offerors were to include up to but not more than three contracts to be considered. AR 394.
ITegrity made the decision to provide three past performance references in its proposal, as it was
permitted to do. ITegrity cannot now meaningfully argue that NOAA’s consideration of those
references renders NOAA’s evaluation contrary to the Solicitation.
ITegrity also advances that the Court should ignore the Government’s reference to an
offeror’s ability to provide a “robust team” because the past performance evaluation criteria
never discussed the need for a robust team and thus the argument is post-hoc. Pl. Resp. at 3.
However, in the evaluation comparing ITegrity and AttainX, the SSO specifically highlighted
that AttainX presented a “robust team,” while ITegrity’s past performance references gave less
confidence that ITegrity could perform the contract. AR 2272. There is nothing post-hoc about
presenting explanation that NOAA “offered contemporaneously with its decision.” Kearney &
Company, P.C. v. United States, No. 24-162, 2024 WL 2209767, at *10 (Apr. 30, 2024). Nor
was it contrary to the Solicitation for NOAA to consider the quality of the team of references
submitted by an offeror in making its past performance rating. Indeed, this Court has confirmed
that “professional judgment is implicit throughout the selection process.” AR 397; Alisud Gesac Handling - Servisair 2 Scarl v. United States, 161 Fed Cl. 655, 668 (2022). Here, that is
exactly what NOAA did. It was therefore proper for the SSO to consider whether the offerors
demonstrated, through its past performance, a robust team capable of fulfilling the contract’s
requirements.
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Additionally, ITegrity contends that because the Solicitation did not require past
performance references from subcontractors, “consideration of whether any particular
subcontractor has the requisite experience was not a permissible consideration under the Past
Performance factor.” Pl. Resp. at 4. Although the Solicitation does not specifically state that
past performance references of subcontractors would be considered that the Agency considered
them was not unreasonable. The Solicitation gave the Agency latitude in determining both the
contracts that would be considered in making a past performance evaluation and the manner in
which those contracts were to be evaluated. AR 394-95. In particular, the Solicitation stated:
“The Government reserves the right to obtain information for use in the evaluation of Past
Performance from any and all sources. . . .” AR 395. This afforded the Agency broad discretion
in its review. See Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009)
(noting the “broad discretion” afforded to agencies so long as the action is not prohibited by
statute, regulation, or the solicitation).
ITegrity asserts that NOAA’s error “was not in evaluating and consider[ing] PP2 and
PP3,” but instead that NOAA erred by “using PP2 and PP3 to create a composite confidence
rating for ITegrity, downgraded based on relevance rather than non-existent poor performance.”
Pl. Resp. at 7. Thus, on one hand, ITegrity states that the agency was permitted to “evaluate”
and “consider” ITegrity’s PP2 and PP3, but on the other hand, it argues that the Agency could
not “use” PP2 and PP3 as part of the past performance evaluation to arrive at a final rating. This
makes no sense. First of all, PP2 was not used as it was deemed not relevant. However, why
would the Agency evaluate and consider PP3 and then not use that in its evaluation? Again,
ITegrity chose to include these references. The Agency did as the Solicitation required by
evaluating the references and rating the references then comparing them to the Solicitation
requirements. That was what was tasked by the Solicitation and properly done by the Agency.
ITegrity further complains that NOAA “punish[ed]” ITegrity for submitting a “not
relevant” past performance record. Pl. Resp. at 8. This statement is not supported by the record.
Instead, the record shows that ITegrity’s PP2, which was determined to be not relevant, “was not
further evaluated for quality purposes.” AR 2187.
And finally, ITegrity’s assertion that “The Agency’s confidence in ITegrity’s ability to
perform should have been instructed by its most relevant past performance reference, with less
relevant references providing neither evaluation benefit nor detriment.” Pl. Resp. at 9 (emphasis
in original). Here, NOAA considered the two relevant past performance references in making
ITegrity’s past performance rating. Although PP3 was determined to be less relevant, the
Solicitation did not preclude the Agency from in considering it in its final evaluation. ITegrity
provided the references; thus, ITegrity cannot fault NOAA for considering them.
Considering the two relevant references in their totality, NOAA reasonably determined
that ITegrity’s past performance warranted a “Some Confidence” rating. This rating was
supported by the record and the evaluation was consistent with the Solicitation. It appears that
ITegrity merely disagrees with the past performance evaluation. However, a mere disagreement
with the past performance evaluation is not enough to sustain a protest. Therefore, the Court
holds that the past performance evaluation by the Agency was reasonable.
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II.

ITegrity was not prejudiced.

ITegrity argues that but for its “Some Confidence” rating it would have had a
substantial chance to receive the award because (1) it was one of the two highest rated
offerors, (2) it performed exceptionally under one of its three contract references, and (3) it
proposed a slightly lower (XX) price. Pl. Resp. at 10-11. The Court disagrees.
As this was a best value Solicitation, the Solicitation provided the guidance to the SSO in
making its award. In particular, the Solicitation provided that “Past Performance will be
considered significantly more important than . . . Price” and that NOAA “may make an award to
other than the lowest-priced vendor . . . if the source selection official determines that to do so
would result in best value to the government.” AR 397. Applying this standard, the record
shows that the Agency made its best value determination by considering the relevancy and
quality of ITegrity’s performance under the incumbent contract as well as recognizing the
limitations of the incumbent contract relative to the instant procurement. In particular, the SSO
noted the “differences in the scope and complexity” of ITegrity’s and AttainX’s past
performance references. AR 2282. Furthermore, the SSO found AttainX “outperforms” ITegrity
and determined AttainX “is better positioned to successfully meet the demands of the A&A
effort as well as the NOAA wide effort and deliver quality results.” AR 2283. The record is
clear that the SSO’s determination would not be disturbed even if ITegrity was correct that the
Agency incorrectly assigned a “Some Confidence” rating to ITegrity.
Furthermore, ITegrity’s argument that its price was XX lower is not relevant as the award
was to be made on a best value determination where past performance was more important than
price. The SSO addressed the price difference stating: “even though AttainX proposed a higher
price, AttainX’s combined technical acceptability and more relevant/higher confidence past
performance references are more beneficial to the government and [] therefore worth the price
premium of XXXXXX.” AR 2285. The SSO then concluded that “while both ITegrity, Inc. and
AttainX, Inc. received positive evaluations for their past performance efforts, there are
differences in the scope, specific capabilities, and outcomes.” AR 2283. This provided the basis
for concluding it was “in best interest of the Government to make an award to AttainX.” AR
2286. It is clear that the SSO’s evaluation was an extensive and thorough analysis. Accordingly,
ITegrity has not met its burden to show that it has a substantial chance at being awarded the
contract.
CONCLUSION
ITegrity has not established that NOAA’s evaluation was conducted in an irrational,
arbitrary, or capricious manner, or that NOAA’s evaluation prejudiced ITegrity. Not having
shown success on the merits, this Court need not consider the other injunctive factors. See Dell
Fed. Sys., L.P. v. United States, 906 F.3d 982, 999 (Fed. Cir. 2018) (holding that “proving
success on the merits is a necessary element for a permanent injunction”). No relief is warranted.
Accordingly, ITegrity’s Motion for Judgment on the Administrative Record is DENIED. The
Government’s and Intervenor’s Cross-Motions for Judgment on the Administrative Record are
GRANTED. The Clerk of Court is directed to enter judgment for the Government. No costs.
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The parties are directed to file redactions within fourteen (14) days of the date of this
Opinion and Order.
IT IS SO ORDERED.
s/Edward J. Damich
EDWARD J. DAMICH
Senior Judge

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