           United States Court of Federal Claims
                                 No. 18-803 C
                       (Filed Under Seal: July 31, 2018)
                          (Reissued: October 9, 2018)
_______________________________
OCEAN ASSOCIATES, INC.,
            Plaintiff,
v.
UNITED STATES OF AMERICA,
            Defendant,
v.
EARTH RESOURCES TECHNOLOGY, INC.,
            Defendant-Intervenor,
v.
TECHNICAL ENGINEERING SUPPORT ALLIANCE,
            Defendant-Intervenor.
__________________________________

       Jason Nicholas Workmaster, Esquire, Covington & Burling LLP, Washington
D.C., for plaintiff.
     Tanya Beth Koenig, Esquire, U.S. Department of Justice – Civil Division,
Washington, D.C., for defendant.
      Ronald Stuart Perlman, Esquire, Holland & Knight LLP, Washington, D.C., for
defendant-intervenors.
                               ORDER AND OPINION1
HODGES, Senior Judge
       Plaintiff, Ocean Associates, Inc., challenges the inclusion of defendant-
intervenors, Earth Resources Technology, Inc. and Technical and Engineering Support
Alliance in the competitive range for a solicitation issued by the National Oceanic
Atmospheric Association (“NOAA”). NOAA is an agency of the Department of
Commerce. Plaintiff contends that NOAA included the intervenors improperly because
they flouted the page limitation through their use of tables.
       Plaintiff filed a Motion for Judgment on the Administrative Record. Defendant
filed a Motion to Dismiss and a Cross Motion for Judgment on the Administrative
Record. For the reasons set forth below, we grant defendant’s Motion to Dismiss for lack
of subject matter jurisdiction and deny the Motions for Judgment on the Administrative
Record as moot.
                                    BACKGROUND
    A. The Solicitation
       NOAA issued a solicitation in January of 2017, to procure professional and
technical services for the Agency’s Fisheries. NOAA intends to award multiple indefinite
delivery, indefinite quantity contracts with a total possible award value of
$3,000,000,000. The solicitation included a two-year base contract with three one-year
option periods.

1
  We issued this Opinion, under seal, on July 31, 2018, and invited counsel to propose
redactions prior to publication. The parties responded with redactions and arguments in a
Joint Status Report. Defendant and intervenor were concerned about mention in the
Opinion of the number of total offerors, the number of offers in the competitive range,
the identities of other offerors, and the evaluation ratings of offerors in the competitive
range. Plaintiff proposed wide-reaching redactions including most of the evaluation
information and any text which quoted the original evaluation.
According to the Federal Circuit, courts deciding on requests for redactions by the parties
should apply a “presumption of public access to judicial records.” Baystate Techs., Inc. v.
Bowers, 238 Fed. Appx. 808, 810 (Fed. Cir. 2008). The parties redactions are overly-
broad and they have provided no rational that overcomes the presumption of public
access. The agency’s adjectival ratings, for example, assigned to various aspects of a
particular proposal, are routinely given public access in these cases. No competitive
advantage or disadvantage arises where the Government’s evaluation, in the form of
quotations and ratings, or the number of offerors becomes part of the public record. The
proposed redactions by the parties are all rejected.
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        The work outlined in the solicitation and expected of the contractor included
thirty-seven subtasks falling into four main areas: (1) studies, analyses, and reports; (2)
applied research, engineering, consulting, and operations; (3) field sampling, data
collection, and surveys; and (4) consulting, program, and program management. Offerors
were instructed that they could be considered for an award without “providing capability
for the entire array of efforts set forth in the [Statement of Work].” AR 510.
        The solicitation set forth detailed instructions how the proposals were to be
formatted. Proposals were to be on 8.5 x 11 inch paper with one inch margins, single-
spaced, with paragraphs separated by at least 6-point spacing. AR 500. They were
required to contain text in Times New Roman 12-point font, but provided that a reduced
font size not less than 8-point was permitted for “Tables and Illustrations.” AR 500. The
solicitation also stated that “[o]fferors whose proposals do not follow all instructions may
be deemed ‘[n]oncompliant’ and disqualified from further evaluation.” AR 498.
       Each individual volume of the proposal was subject to specified page limitations.
At issue is Volume II, which addresses Evaluation Factor 1: “Corporate Experience and
Commitment,” and was limited to twenty-five pages of text, tables, and illustrations. AR
500. Offerors were asked to describe their “breadth and depth of experience and
qualifications working within the requirements of the [Statement of Work].” AR 503.
Past commitment and experience would be considered, but the solicitation noted that
“[e]valuation of technical experience will also be based on proposed methods for
establishing, organizing and performing logistics related aspects of this requirement.” AR
504.
        The solicitation did not specify the total number of expected awards, but instead
noted that it would make a “manageable number of awards . . . to ensure adequate
competition at the task order level and to allow for the small business reserves.” AR 510.
It also stated that “[o]fferors with limited capability may obtain a contract if they are the
only firm or highly beneficial for a part of this domain.” AR 510.
       NOAA stated that the award would be made on a best value basis by the “Highest
Technically Rated Offerors with a Fair and Reasonable Price.” AR 509. In other words,
“an Offeror whose proposed prices are determined not to be fair and reasonable will not
be awarded a contract regardless of the Government’s evaluation of the non-price factors
of the Offeror’s proposal.” AR 509. However, three non-price factors “when combined,
are significantly more important than cost or price.” Id. Those non-price factors were
listed as (in descending order of importance): Factor 1, Corporate Experience and
Commitment; Factor 2, Management Approach; and Factor 3, Past Performance. Id.
       Regarding the first non-price factor, Corporate Experience, the solicitation
indicated that offerors would be evaluated based on the extent of their demonstration of
“the qualifications and corporate experience in performing work of the same or similar
nature as that of the requirements of the SOW.” AR 510. NOAA stated it would evaluate

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the Management Approach based on “the extent to which the Offeror’s management and
organization demonstrate sound and reasonable business practices with respect to
managing this contract.” Id. Past Performance was to be evaluated “based on the
relevance and quality of the Offeror’s and proposed subcontractors’ past performance as
it relates to the probability of successfully accomplishing the solicitation requirements.
AR 510–11.
   B. The Proposals
       NOAA received twenty-six timely proposals. Plaintiff’s and intervenors’ Volume
II proposals are the relevant aspects of the procurement in this case
       Earth Resources Technology, Inc.’s Volume II contains twenty-five pages. Of
those twenty-five pages, approximately twelve are covered with one-column tables. The
tables consists of paragraphs and headings printed in 8-point font and do not contain
space between paragraphs or headings and text, meaning the proposal contained more
text than it would have been able to had the offeror removed the lines around the
language. The additional text is attributable to the smaller font size, the lack of spaces
between the headings and the descriptions, and the lack of space between paragraphs.
       Technical and Engineering Support Alliance employed essentially the same
device. It included approximately twelve pages of a table with a single column, in
Calibri 8-point font. This allowed Technical and Engineering Support Alliance to include
more text than it could have if the information were formatted according to the guidelines
for non-table text.
       Plaintiff did not submit any lengthy tables in Volume II of its proposal. The
majority of its document contains text in the appropriate 12-point Times New Roman, as
required by the solicitation.
   C. The Evaluation and Competitive Range Determination
        The Contracting Officer reviewed the proposals for compliance and determined
that eleven of the twenty-six were noncompliant. The Contracting Officer determined that
plaintiff’s proposal was noncompliant because it did not include an organizational
conflict of interest mitigation plan or statement. AR 5461. None of the offerors was
disqualified for failure to follow all instructions or for improper formatting.
       NOAA’s Source Evaluation Board considered all proposals and created consensus
evaluations for each offeror. Plaintiff’s evaluation resulted in a “Marginal” rating for
Factor 1, an “Acceptable” rating for Factor 2, and an “Acceptable” rating for Factor 3.
AR 5503; AR 5505; AR 5512. For Factor 1, out of the thirty-seven sub-tasks, plaintiff
received weaknesses in twenty-six of them, six of which were significant. AR 5496–501.
Plaintiff received a strength in one task: C.3.4.9. AR 5501–02. Of the twenty-six offerors,
only plaintiff and intervenors received a strength for subtask C.3.4.9. AR 5502. Plaintiff
met the requirements of the remaining ten subtasks. AR 5502. The “Marginal” rating for
                                            4
Factor 1 was a result of a determination that the “proposal does not clearly meet
requirements and has not demonstrated an adequate approach and understanding of the
requirements. The proposal contains multiple significant weaknesses . . . The risk of
unsuccessful performance is moderate to high.” AR 5502.
       The contracting officer engaged in a competitive range determination upon
completion of the board’s evaluation, and concluded that seventeen offerors should
remain in the range, including both intervenors. Plaintiff was excluded from the
competitive range. AR 5656. The competitive range determination provided the
following explanation for Plaintiff’s exclusion:
      OAI’s Factor I rating was Marginal and was not considered among the most
      highly rated proposals. In addition, for Factor II, while not as important as
      Factor I, OAI’s rating was Acceptable, which was not sufficient given the
      lack of depth identified in their Factor I proposal and given that it did not
      offer more benefits than other proposals under Factor II. Lastly, Factor III,
      is the least important non-price factor and [another offeror] was the more
      highly rated Offeror with an Outstanding (OAI was rated Acceptable for
      Factor III).
AR 8241.
       Earth Resources Technology, Inc.’s proposal received one significant weakness,
eight weaknesses, one significant strength, twelve strengths, and met requirements for
nineteen subtasks. AR 5532-39. ERT received the following ratings for Factors 1, 2, and
3 respectively: “Marginal,” “Acceptable,” and “Acceptable.” AR 5642. Technical and
Engineering Support Alliance received one significant weakness, eight weaknesses, eight
strengths, and met requirements for twenty-one subtasks. AR 550-556. Technical and
Engineering Support Alliance received the following ratings for the factors, respectively:
“Marginal,” “Acceptable,” and “Outstanding.” AR 5643.
   D. Government Accountability Office (GAO) Protests
       Plaintiff filed a protest with GAO in October of 2017, challenging its exclusion
from the competitive range. Plaintiff’s protest was based on two grounds: (1) NOAA
failed to consider price before excluding plaintiff from the competitive range; and (2)
NOAA conducted an unreasonable and improper evaluation of Plaintiff’s proposal under
the Corporate Experience and Commitment factor. AR 8642. Plaintiff later supplemented
the protest with an allegation that the intervenors violated the formatting requirements by
an overuse of tables, and therefore the inclusion of the intervenor’s proposals in the
competitive range was irrational. AR 8261. GAO informed the parties that it would
sustain the protest as to the pricing argument, but not on the other two grounds. NOAA
took corrective action to address the pricing evaluation error and GAO dismissed the
protest.

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        Therefore, NOAA’s corrective action did not result in plaintiff’s inclusion in the
competitive range. Plaintiff then filed a second protest with GAO challenging its
exclusion from the competitive range based on its assertion that intervenor’s inclusion
was improper due to formatting requirements. AR 8633-34. GAO informed the parties
that it would not sustain the protest, and plaintiff withdrew the protest to file a complaint
in this court. AR 8765.
                               STANDARD OF REVIEW
        In considering a motion to dismiss for lack of subject matter jurisdiction, we
accept as true all uncontroverted factual allegations in the complaint, and construe them
in a light most favorable to the non-moving party, plaintiff in this case. RCFC 12(b)(1).
Plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance
of the evidence.
                                      DISCUSSION
       Defendant contends that this court lacks subject matter jurisdiction over plaintiff’s
claim because plaintiff cannot establish standing as an “interested party.” While this court
generally possesses subject matter jurisdiction over a plaintiff’s claims alleging an
agency’s improper procurement actions, plaintiff must show that it has standing as a
threshold jurisdictional inquiry.
       The standing requirements in a bid protest are “more stringent than the standing
requirements imposed by Article III of the Constitution.” Diaz v. United States, 853 F.3d
1355, 1358 (Fed. Cir. 2017) (citing Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1359 (Fed. Cir. 2009)). Plaintiff has standing only if it is an interested party. “An
interested party is an actual or prospective bidder whose direct economic interest would
be affected by the award of the contract.” Orion Tech., Inc. v. United States, 704 F.3d
1344, 1348 (Fed. Cir. 2013). Defendant does not contend that plaintiff is an actual bidder
in the procurement solicitation at issue. Therefore, plaintiff has met the first prong of the
standing requirement.
       The second element of standing requires plaintiff to demonstrate that it was
prejudiced by the agency’s alleged error. See Diaz, 853 F.3d at 1359 (noting that to show
prejudice, plaintiff must show that but for the agency’s error, it “would have had a
substantial chance of securing the contract”) (quotations omitted) (citations omitted).
       Defendant asserts that plaintiff has no direct economic interest because it has no
substantial chance of winning the contract. Even if intervenors are removed from the
competitive range, plaintiff’s proposal would not prevail because removing intervenors
would not remedy the deficiencies in plaintiff’s proposal. Therefore, even if both
intervenors were removed from the competitive range, plaintiff would not be included.
      Plaintiff argues that if intervenors were removed from the competitive range, it
would remain the only offeror with a strength for a specific subtask, namely C.3.4.9.
                                             6
Therefore, according to plaintiff, NOAA would have no choice but to include plaintiff in
the competitive range. This assertion is based on language in the solicitation stating:
“Offerors with limited capability may obtain a contract if they are the only firm or highly
beneficial for a part of this domain.” AR 510. Defendant, however, points out that this
language is permissive and therefore does not require NOAA to include any offeror in the
competitive range, or even award a contract, for a “unique strength,” i.e. where offeror is
the only offeror with a strength in a specific subtask. In the context of the entire
paragraph, it is clear that the purpose of this sentence is to explain that an offeror need
not be capable of performing all of the subtasks, or to be the winning offeror in all the
subtasks, to obtain some portion or even a single subtasks in the award.
       Other offerors were “the only, or one of two, to offer a strength or significant
strength for a particular element or group of elements for the statement of work (SOW).”
AR 5644. Three of those offerors were omitted from the competitive range. AR 5647; AR
5652; AR 5650. Furthermore, eleven other offerors met the requirements for subtask
C.3.4.9.
                                       CONCLUSION
        Plaintiff has not shown that it has standing because NOAA’s decision did not
prejudice plaintiff in this case. It cannot establish that but for the Agency’s alleged
wrongful action, it would have a substantial chance of winning the contract. The alleged
wrongful action is including intervenors in the competitive range. Therefore, we consider
whether leaving those offerors out of the competitive range would result in giving
plaintiff a substantial chance of winning the contract. NOAA’s exclusion of intervenors
from the competitive range would have no effect on plaintiff’s chance of winning the
contract because plaintiff’s proposal contained other deficiencies which would remain
deficient even after excluding intervenors.
       Nor would it increase plaintiff’s chances of being included in the competitive
range. The language of the solicitation does not show that having a “unique strength”
guarantees offeror a contract or even inclusion in a competitive range. NOAA has shown
that it did not place offerors with “unique strengths” into the competitive range
automatically. Further, removal of the intervenors does not alter the ratings of plaintiff’s
proposal and does not make it any more likely that plaintiff would be included in the
competitive range. Plaintiff lacks standing, and we must dismiss plaintiff’s complaint
since we do not have jurisdiction over its claim.
      For the reasons stated, defendant’s Motion to Dismiss is GRANTED. The parties’
Motions for Judgment on the Administrative Record are moot and therefore DENIED.




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IT IS SO ORDERED.

                     Robert H. Hodges, Jr.
                    s/

                    Robert H. Hodges, Jr.
                    Senior Judge




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