        In the United States Court of Federal Claims
                                             No. 13-58C

                                (Filed Under Seal: May 17, 2013)

                           (Reissued for Publication: May 28, 2013) 1

***************************************
                                      *
DAVIS BOAT WORKS, INC.,               *
                                      *
                Plaintiff,            *
                                      *                     Post-award Bid Protest; U.S. Coast
 v.                                   *                     Guard Procurement for Cutter Boat
                                      *                     Maintenance and Repair Services;
THE UNITED STATES,                    *                     Challenge to Agency’s Reevaluation
                                      *                     of Proposals After Corrective Action;
                Defendant,            *                     Equal Treatment of Offerors;
                                      *                     Clarification of Proposals; Lack of
and                                   *                     Prejudice From Agency’s Minor
                                      *                     Errors.
BMT DESIGNERS & PLANNERS, INC.,       *
                                      *
                Defendant-Intervenor. *
                                      *
***************************************

James E. Krause, Law Office of James E. Krause, Jacksonville, Florida, for Plaintiff.

William J. Grimaldi, with whom were Stuart F. Delery, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director,


1
  The Court issued this decision under seal on May 17, 2013 and invited the parties to submit proposed
redactions of any competition-sensitive, proprietary, confidential, or other protected information on or
before May 24, 2013. The parties jointly proposed that the Court redact certain sensitive procurement
information, namely (1) the names of two of Plaintiff’s employees, and (2) the name of a proposed
subcontractor. The parties further propose that, for the sake of readability, the Court replace the
employees’ names with “Mr. A” and “Mr. B,” respectively, rather than simply redact their names. The
Court adopts this proposal, and also accepts and applies the parties’ other limited proposed redactions,
which are indicated in the decision by brackets and three asterisks, [* * *].
U.S. Department of Justice, Civil Division, Commercial Litigation Branch, Washington,
D.C., for Defendant.

Daniel S. Koch, with whom were Joseph G. Billings and Rita J. Piel, Miles &
Stockbridge PC, Rockville, Maryland, for Defendant-Intervenor.

                                OPINION AND ORDER

WHEELER, Judge.

       In this post-award bid protest brought under 28 U.S.C. § 1491(b)(1), Plaintiff
Davis Boat Works, Inc. challenges the United States Coast Guard’s proposal evaluation
process in a procurement for inspection, maintenance, repair, and storage of a fleet of
cutter boats. The parties have cross-moved for judgment on the administrative record,
pursuant to Rule 52.1(c) of the Court’s rules (“RCFC”). For the reasons set forth below,
the Court finds that Davis has failed to establish its entitlement to relief on any of the
protest grounds alleged. Accordingly, the Court denies Davis’s motion for judgment on
the administrative record, and grants the Government’s cross-motion for judgment on the
administrative record.

                                       Background

       On March 19, 2012, the United States Coast Guard (“USCG”) issued Solicitation
No. HSCG40-12-R-50008 for “the retrieval, inspection, maintenance, repair/refit, testing,
storage, and transportation for a rotating pool of up to 33 Cutter Boat Over-The-Horizon
(CB-OTH) MKIIs and MKIIIs and trailers to support Coast Guard cutters throughout the
United States.” Administrative Record (“AR”) 96. Under the pre-solicitation operations
for the USCG’s Cutter Boat management program, the USCG assigns each “Major
Cutter” a set of accompanying Over-The-Horizon Cutters (“OTHs”), with the result that
“[w]hile the parent Cutter is in port, or in programmed depot maintenance the assigned
Cutter Boat(s) [i.e., the OTHs] remain idle, and not utilized for operational service.” Id.
244. Using this program, the USCG seeks to improve the readiness of its fleet and
achieve cost and efficiency savings by moving the OTHs “into a centralized pooling
system in which the boats are centrally maintained and stored at a contractor’s facility….
[and] transported to Major Cutters to meet operational needs as determined by the Coast
Guard.” Id. The goal of these planned changes, known as the Centralized Cutter Boat
Pool (“CCBP”) strategy, is to “decrease the number of active [OTHs] the Coast Guard
requires while simultaneously increasing the number of hours each boat in the pool is
available for deployable operations.” Id.

       The solicitation states that the procurement is for a “non-commercial fixed-price
Requirements contract with time-and-material [contract line items, or ‘CLINs’]
consisting of one (1) base year and four (4) option years.” Id. 96. However, the USCG

                                             2
specified that for the first six months of the contract, the program would operate on a
“pilot” basis, and cover only 16 boats. Id. 244. The USCG added that “[t]he Contractor
should expect an average of 7 and up to 10 boats in storage/maintenance at any time
during the duration of the pilot,” but that “[d]epending on the success of the 6-month
pilot period, it is anticipated that the number of boats will start to increase incrementally,”
up to 33. Id. To accommodate the USCG’s anticipated storage needs, the Final
Specification required that “[t]he Contractor’s facility must be indoor and climate
controlled, capable of storing up to 16 boats on trailers.” Id. 252.

        The USCG advised prospective offerors that it would award the contract “to the
offeror whose proposal provides the best overall value to the Government.” Id. 222. The
solicitation’s evaluation criteria consisted of three factors: (1) Technical Capability; (2)
Past Performance; and (3) Price. Id. 223-24. The Technical Capability factor consisted
of five subfactors, listed in descending order of importance: (1) Management Approach;
(2) Teaming Arrangement/Subcontractors; (3) Quality Assurance Plan; (4) Staff
Experience and Key Personnel; and (5) Facilities/Equipment. Id. 223.2

       The USCG explained in the solicitation that it would perform a price
reasonableness analysis by comparing the prices of all offerors “with the government’s
estimate and historical and market research results.” Id. 224. In describing the relative
importance of the evaluation criteria, the USCG stated that “[t]echnical capability is more
important than past performance,” and that “[w]hen combined, the non-cost factors are
significantly more important than … price.” Id. 222.

       The USCG received proposals from seven offerors in response to the solicitation,
including Davis Boat Works, Inc. (“Davis”), BMT Designers & Planners, Inc. (“BMT”),
and Crowley Technical Services LLC (“Crowley”). AR Tabs 25-38. The USCG
conducted an evaluation of these proposals, AR Tabs 39-45, and requested clarifications
from some of the offerors, AR Tabs 46-50.

       On August 21, 2012, the USCG awarded the contract to BMT. AR 4206.
Following a debriefing, Crowley filed a bid protest at the Government Accountability
Office (“GAO”), but the GAO dismissed this protest as untimely. AR Tabs 98, 101.
Crowley then filed an action in this Court. AR Tab 102; Crowley Tech. Servs., LLC v.
United States, Fed. Cl. No. 12-732C. In response to this suit, on November 8, 2012,
Defendant agreed to take corrective action by having the USCG reevaluate the proposals
it had received under the solicitation, and issuing a new source selection decision. AR

2
  The solicitation’s evaluation subfactors were potentially confusing because the subfactors were listed in
a different descending order on the same page. AR 223. The solicitation first listed the subfactors in the
order stated in the main text above, but then included a brief description of each subfactor in the
following different order: (1) Facilities/Equipment; (2) Management Approach; (3) Staff Experience and
Key Personnel; (4) Teaming Arrangement/Subcontractors; and (5) Quality Assurance Plan. Id. In
Amendment 0001, the USCG clarified that the order of importance in the main text governed. AR 282.

                                                    3
4688-89. Crowley voluntarily dismissed the case without prejudice shortly thereafter.
Id. 4690.

       At the conclusion of the reevaluation, the USCG again concluded that BMT’s
proposal contained a superior technical solution and would, on balance, provide the best
value to the Government. Id. 4558-59. With respect to the merits of Davis’s proposal, as
compared to BMT’s, the Contracting Officer (“CO”) stated:

        Davis Boat Works submitted the lowest total evaluated price of all
        Offerors[;] however[,] they only received an overall rating of marginal.
        While [Davis] received a superior rating for quality assurance, [it also]
        received a rating of good for management approach; satisfactory for
        teaming arrangements; marginal for staff experience; and marginal for
        facilities. [Its] past performance was rated as significant confidence. The
        weaknesses with [its] technical proposal and the prices proposed indicate an
        overall lack of understanding of the program requirements. Although
        BMT’s total evaluated price is higher, [its] superior technical proposal
        offers a better value to the Government.

Id. 4558.

        The USCG again selected BMT for contract award, and on January 23, 2013,
Davis filed the present bid protest. Davis asserts that the USCG did not evaluate
proposals in accordance with the solicitation’s evaluation criteria, and did not treat all
offerors equally. In particular, Davis questions the manner in which the USCG modified
its rating of proposals in the second evaluation. After the parties cross-moved for
judgment on the administrative record, the Court held oral argument on May 7, 2013.

                                         Discussion

   I.       Jurisdiction

        This Court has jurisdiction over post-award protests pursuant to the Tucker Act,
28 U.S.C. § 1491. Specifically, 28 U.S.C. § 1491(b)(1) provides this court with the
authority “to render judgment on an action by an interested party objecting to … a
proposed award or the award of a contract or any alleged violation of statute or regulation
in connection with a procurement or a proposed procurement.” The jurisdictional grant is
“without regard to whether suit is instituted before or after the contract is awarded.” Id.
However, as a threshold jurisdictional matter, the plaintiff in a bid protest must show that
it has standing to bring the suit, i.e., that it is an “interested party” within the meaning of
Section 1491(b)(1). Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312,
1319 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d
1366, 1369-70 (Fed. Cir. 2002) (internal citation omitted).

                                               4
        The Federal Circuit has defined an “interested party” as an “actual or prospective
bidder or offeror 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. v. United States,
258 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2)); see also Distributed
Solutions Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008); Rex Serv. Corp. v.
United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). In the post-award context, a
plaintiff must satisfy a two-part test to be an interested party. First, plaintiff must
demonstrate that it is an actual or prospective bidder or offeror. Rex Serv. Corp., 448
F.3d at 1307. Second, the plaintiff must demonstrate that it has suffered prejudice as a
result of the procurement outcome, id., which, in turn, requires a showing that “but for
the error, [the plaintiff] would have had a substantial chance of securing the contract.”
Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009) (internal
citations omitted); Rex Serv. Corp., 448 F.3d at 1307. At the standing stage, the Court
“assumes all non-frivolous allegations to be true[.]” Orion Tech., Inc. v. United States,
102 Fed. Cl. 218, 226 n. 10 (2011) (internal citation omitted).

        The Government does not dispute that Davis, as a qualified offeror whose
proposal was found to be technically acceptable and within the competitive range, has
standing as an “interested party” with a direct economic interest in the award of the
contract. The Court finds that Davis was an actual offeror with a direct economic interest
in the procurement, and therefore has standing to bring this suit.

   I.     Legal Standard

        In a bid protest, a court reviews an agency’s procurement actions under the
standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, which
provides that a reviewing court shall set aside the agency action if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.; see
also, e.g., Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350-51 (Fed.
Cir. 2004) (internal citation omitted). Under this standard, “[a] bid protest proceeds in
two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First,
the Court determines whether a procurement decision either (a) lacked a rational basis, or
(b) involved a violation of a statute or regulation. Axiom Res. Mgmt., Inc. v. United
States, 564 F.3d 1374, 1381 (Fed. Cir. 2009). “A court evaluating a challenge on the first
ground must determine whether the contracting agency provided a coherent and
reasonable explanation of its exercise of discretion. When a challenge is brought on the
second ground, the disappointed bidder must show a clear and prejudicial violation of
applicable statutes or regulations.” Id. (quoting Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001)).

      The inquiry at this first step is “highly deferential,” Advanced Data Concepts, Inc.
v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000), and de minimis errors in the

                                            5
procurement process do not justify relief. Grumman Data Sys. Corp. v. Dalton, 88 F.3d
990, 1000 (Fed. Cir. 1996) (internal citations omitted); E.W. Bliss Co. v. United States,
77 F.3d 445, 449 (Fed. Cir. 1996) (noting that “[p]rocurement officers have substantial
discretion to determine which proposal represents the best value for the government”);
DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528, 537 (2007) (“‘[B]est value’
contract awards give a contracting officer more discretion than awards based on price
alone.”) (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir.
2004)).

       Accordingly, “[i]f the court finds a reasonable basis for the agency's action, the
court should stay its hand even though it might, as an original proposition, have reached a
different conclusion as to the proper administration and application of the procurement
regulations.’” Weeks Marine v. United States, 575 F.3d 1352, 1371 (Fed. Cir. 2009)
(quoting Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989)). In
addition, while the Court “‘may not supply a reasoned basis for the agency’s action that
the agency has not itself given,’” it must nonetheless “‘uphold a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.’” In re Applied Materials,
Inc., 692 F.3d 1289, 1294 (Fed. Cir. 2012) (quoting SEC v. Chenery Corp., 332 U.S. 194,
196 (1947) and Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,
286 (1974), respectively).

        On the other hand, “[a] court must find an agency decision arbitrary and capricious
if the government ‘entirely failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the evidence before the agency, or [the
decision] was so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.’” BINL, Inc. v. United States, 106 Fed. Cl. 26, 36 (2012)
(quoting Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375
(Fed. Cir. 2009)); see also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). The protester carries the burden of proving that such an error
marred the procurement in question. CACI Field Servs., Inc. v. United States, 854 F.2d
464, 466 (Fed. Cir. 1988).

        If the Court finds that the agency acted without a rational basis or contrary to law,
it must then, at the second step, “determine… if the bid protester was prejudiced by that
conduct.” Bannum, Inc., 404 F.3d at 1351. “Prejudice is a question of fact,” which the
plaintiff again bears the burden of establishing. Id. at 1353, 1358. This prejudice
determination is based on the same standard as the initial one made at the standing stage;
however, at this step, the plaintiff must prove its allegations by a preponderance of the
evidence. Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 198, 207 (2011); Sys.
Applications & Techs, Inc. v. United States, 100 Fed. Cl. 687, 707 n.15 (2011).

      Moreover, in reviewing a motion for judgment on the administrative record made
pursuant to RCFC 52.1(c), the court determines “whether, given all the disputed and

                                             6
undisputed facts, a party has met its burden of proof based on the evidence in the record.”
Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 355 (2009). The
existence of a material issue of fact, however, does not prohibit the Court from granting a
motion for judgment on the administrative record, nor is the court required to conduct an
evidentiary proceeding. Id. (“In a manner ‘akin to an expedited trial on the paper record,’
the court will make findings of fact where necessary.”) (quoting CHE Consulting, Inc. v.
United States, 78 Fed. Cl. 380, 387 (2007)).

       Thus, in order to prevail on the merits of its case, Davis must demonstrate by a
preponderance of the evidence that, if not for errors in the USCG’s proposal evaluation
process, it “would have had a substantial chance of securing the contract.” Labatt Food
Serv., 577 F.3d at 1378.

   II.      Analysis

       In its motion for judgment on the administrative record, Davis raises a number of
protest grounds relating to the USCG’s process in reevaluating the proposals it received
in response to the solicitation. First, Davis contends that the Government violated the
Competition in Contracting Act (“CICA”), 10 U.S.C. § 2305(b)(1), by failing to
“evaluate [the] proposals and make [its] award[] based on the criteria stated in the
Solicitation.” Pl. Mem. at 15. Davis also argues that it was not treated equally with the
other offerors. As evidence for this assertion, Davis contends that it was downgraded in
three categories, as compared to the scores it received in its initial evaluation. Id. at 5-6.
Specifically, Davis alleges that the USCG failed to evaluate properly its stated capacity
for boat storage, its reprioritization plan, its proposed teaming arrangements, and its price
proposal.

        Davis also questions the USCG’s treatment of the proposal submitted by the
chosen offeror, BMT. Here, Davis contends that the USCG afforded an unfair advantage
to BMT by giving it, and no others, the opportunity to “augment [its] proposal,” Pl. Mem.
at 6, and also that the USCG gave BMT preferential treatment in considering its proposed
personnel. Pl. Reply at 11-12.

       The Court will address each of these arguments below. For the reasons explained,
the Court finds that Davis has failed to meet its burden on any of the protest grounds
asserted.

         A. The USCG’s Evaluation of Davis’s Proposal

            1. The USCG Applied the Stated Evaluation Factors

       Davis’s first contention is that the USCG evaluated its proposal not on the basis of
the factors specified in the solicitation, as required by CICA, 10 U.S.C. § 2305(b)(1), but

                                              7
rather against the substance of other offerors’ proposals. Pl. Mem. at 8. As the basis for
this argument, Davis offers the sworn affidavits of its President, Frank Wagner, and Vice
President, Algie Spurlock. Messrs. Wagner and Spurlock allege that in their post-award
debriefing with the USCG, Contract Officer Kelly Wyatt stated repeatedly that Davis’s
proposal had been rated against the competing proposals, rather than against the terms of
the solicitation itself. Wagner Aff. ¶ 7(e); Spurlock Aff. ¶ 7(d).

        However, as the Government points out, these assertions are plainly belied by the
administrative record, which contains clear evidence of the USCG’s proposal evaluations.
The record demonstrates that the USCG in fact evaluated both Davis and the other
offerors against the standards set forth in the solicitation. See generally AR Tabs 75-88.
Moreover, although Davis attached the Wagner and Spurlock affidavits to its opening
brief, it never moved to supplement the administrative record with these documents. In
reviewing cross-motions for judgment on the administrative record, the court is limited to
the documents included in that record. Supplementation is permitted only upon a
showing that “the omission of [specific] extra-record evidence precludes judicial review.”
Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009).
“The purpose of limiting review 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.’” Id. (quoting Murakami v. United States, 46 Fed. Cl. 731,
735 (2000)). Since Davis failed to request that the Court permit the supplementation of
the administrative record with the Wagner and Spurlock affidavits, they remain “extra-
record” and beyond the scope of review in this case.

          2. The Downgrade of Davis’s Proposal Is Not Evidence of Unequal Treatment

       Davis next alleges that the USCG retaliated against both it and Crowley in the
second round of proposal evaluations for objecting to the agency’s award decision
following the first round. In Davis’s words:

      [i]t is clear that Crowley, the Protester in the original protest, was
      downgraded in every single subfactor/category on reevaluation. It would
      be unreasonable to claim this is mere coincidence. This appears to be
      reprisal by the USCG for protesting, and establishes the probability of a
      Government action in which all the proposals were not graded fairly and
      reasonably according to the terms and conditions of the Solicitation. Not
      too surprisingly, Davis, [which] provided an affidavit in the first protest for
      Crowley, was downgraded in three categories, the second biggest loser in
      this re-evaluation. For this single reason, Davis requests this Contract be
      cancelled and resolicited ….

Pl. Mem. at 5-6.


                                            8
     The USCG interprets this argument as an allegation of bad faith. Gov’t Mem. at 9.
The Court agrees with this characterization, and also agrees that Davis has not provided
compelling evidence to support its contention.

       Even assuming that Davis was substantially downgraded in the reevaluation of
proposals (an assertion the USCG contests), the Court finds this bare fact to fall far short
of a showing of bad faith. As the Government notes, “[a]n agency is afforded the
discretion to change its mind during the course of an evaluation.” Gov’t Mem. at 12
(citing G4S Tech. CW LLC v. United States, --- Fed. Cl. ---, 2013 WL 935890, at *13
(Fed. Cl. Mar. 12, 2013)). Indeed, the Court fails to understand what purpose a
reevaluation would serve if the technical evaluation team could not change its mind. The
Court will not infer bad faith from the fact that Davis received minor downgrades in
certain categories during the second evaluation. Davis’s allegations lack supporting
evidence, and are without merit.

          3. Davis Has Not Demonstrated that the USCG’s Evaluation of Its Proposal
             Was Arbitrary, Capricious, or an Abuse of Discretion

       Davis makes a number of arguments that the USCG failed to properly evaluate its
proposal in the areas of its stated capacity for boat storage, its reprioritization plan, its
proposed teaming arrangements, and its price proposal. The Court will address each of
these grounds below.

                     a. Boat Storage Capacity

       As noted, the USCG anticipated that during the six-month pilot program, it would
require storage space for “an average of 7 and up to 10 boats in storage/maintenance at
any time.” AR 244. The solicitation stated an expectation that this number of boats
would “increase incrementally,” and that the USCG therefore required that “[t]he
Contractor’s facility … be indoor and climate controlled [and] capable of storing up to 16
boats on trailers.” Id.; see also AR 362 (solicitation Questions and Answers, stating that
“[s]torage needs to be available to accommodate 16 boats, even though the anticipated
average number is well below this”).

       Davis challenges the USCG’s determination that it lacks the requisite boat storage
capacity. See AR 4527 (USCG reevaluation, finding that Davis’s proposal “depicts room
for 13 boats, vice the 16 required by the RFP”). First, apparently referencing the lesser
storage requirements for the pilot period only, Davis argues that “[t]he storing of 16 boats
at the same time was not a requirement of the solicitation.” Pl. Mem. at 10. This
argument contradicts the terms of the solicitation, as quoted above.

       Second, Davis argues that its proposal did, in fact, identify the company’s capacity
to store the requisite 16 boats. Pl. Reply at 10-11. Here, Davis contends, in addition to

                                             9
the space in its secure climate controlled storage building, the company also is able to
make its tube and trailer repair shops, as well as its Inflatable Boat division facility
available for additional storage in order to bring its proposal in line with solicitation
requirements. Id. at 11. Davis further states that if the USCG had toured these additional
buildings during its site visit, it would have realized that Davis could meet the storage
requirements. Id.

       However, as the Government points out, Davis’s proposal makes no mention of
the qualifications or capacity of these potential auxiliary storage facilities. Moreover, in
its written clarification, Davis stated that its proposal “showed 14 OTH’s.” AR 4509.
The Court agrees with the USCG that, under the terms of the solicitation, the
responsibility to identify adequate storage capacity belonged to Davis, and not to the
USCG inspectors performing a site visit. Id. 217 (solicitation submission requirements,
providing that “[t]echnical proposals submitted in response to this Solicitation must
demonstrate … the ability to meet all of the requirements covered in the Specification”);
see also Software Eng’g Servs., Corp v. United States, 85 Fed. Cl. 547, 555 (2009) (“[I]t
is well established that all offerors … are expected to demonstrate their capabilities in
their proposals.”) (internal citation omitted). Although the USCG’s determination that
Davis’s proposal identified only 13 storage “slots” was apparently in error, see Gov’t
Reply at 4 (acknowledging that in its response to the USCG’s request for clarification,
Davis identified the capacity to store 14 boats), this error was without prejudice to Davis
where the solicitation plainly required a storage capacity for 16 boats.

                     b. Reprioritization Plan

        Davis asserts that the USCG “downgraded Davis because Davis did not provide
for re-prioritization – which is NOT a requirement of this solicitation.” Pl. Mem. at 8-9
(emphasis in original). However, the solicitation in fact stated: “[t]he Contractor shall
prioritize work as to ensure at least one boat is ready for delivery at all times. The
Contractor shall have a ‘Ready Boat’ designated at all times. Unless otherwise directed,
this Ready Boat will be the next boat utilized for a boat delivery.” AR 264.

       Since Davis failed to address this requirement in its proposal, there was nothing
improper in the USCG’s decision to assign Davis a “minor weakness” for its omission.
Id. 4525.

                     c. Teaming Arrangements / Subcontractors

       Next, Davis argues that the USCG improperly downgraded it for proposing to sub-
contract only one percent of its electronics work under the contract, where the solicitation
did not require offerors to subcontract any such work. Pl. Mem. at 9. The Government
agrees that the solicitation did not contain subcontracting requirements or goals for this
work, but contends that a lack of clarity in Davis’s proposal regarding the electronics

                                             10
portion of the contract led it to properly downgrade the company. Specifically, Davis’s
proposal stated that a particular subcontractor, [* * *], would perform “100%” of the
necessary electronics work, “but less than 1% of [the] total contract.” AR 3027. Because
electronics work accounted for more than 1% of the total contract value, the USCG states
that it perceived Davis as having less than perfect understanding of the contract’s
requirements. Accordingly, it downgraded the company’s proposal.

       The USCG review panel noted that:

       Davis’s teaming arrangements listed ‘less than 1%’ for all the
       subcontractors, including Electronics … ELEX PMS alone constitutes more
       than 1% of the contract requirements and there is no indication in the
       proposal that Davis has in-house workers with ELEX experience.
       Although they have the resources to draw upon in their subcontractors,
       claiming that only 1% of the work is ELEX related demonstrated a lack of
       understanding of the contract requirements … and greatly increases the risk
       that Davis will fail to meet the contract requirements.

Id. 4526.

        Davis contends that it always intended to perform the remaining electronics work
itself, and that it has the capacity to do so. Pl. Mem. at 9. The Court agrees with the
Government, however, that because the solicitation required Davis to state its capabilities
in its proposal, the adverse consequences of an omission are properly Davis’s
responsibility. See Software Eng’g Servs., 85 Fed. Cl. at 555.

                     d. Price Proposal

       Davis raises various arguments regarding the USCG’s evaluation of its price
proposal, which was the lowest received. See AR 4576 (USCG’s letter to Davis, noting
Davis as the lowest bidder). First, Davis contends that the USCG improperly
downgraded its proposal for its omission of a detailed price breakdown, with line items
for specific categories of costs. Davis argues that under the terms of the solicitation,
inclusion of this information was optional, and that after Davis failed to include it in its
proposal, the USCG should have requested supplementation. Pl. Mem. at 10-11; Pl.
Reply at 14.

        Once again, Davis’s contention is contradicted by the plain language of the
solicitation. As relevant, the solicitation states “it is requested that you provide a
breakdown of your costs, to include but not be limited to: Cost/hour/trade[;]
Supplies/materials (description & cost of each[;] Sub-total[;] Pensions Plans[;] Overhead
rate[; and] Profit[.]” AR 220. However, whether or not this language, and in particular,
the use of the term “requested,” can be construed as merely precatory in this context, the

                                             11
USCG expressly clarified in the Question and Answer section that the inclusion of such
information was mandatory. That section contains the following exchange:

       QUESTION: … Does the wording ‘it is requested that you provide a
       breakdown of your costs’ indicate that this is required, or may it be
       omitted? …

       ANSWER: Yes, it is required. No, it may not be omitted….

AR 296.

       Further, in its Reply brief Davis relies on Preferred Systems Solutions, Inc. v.
United States, 110 Fed. Cl. 48 (2013), apparently for the proposition that the USCG had
an affirmative duty to clarify Davis’s low price offer with the company before rejecting
its proposal as failing to provide the best value to the Government. Pl. Reply at 14. But
that case held only that an agency did not act arbitrarily when, in its discretion, it
“recognized the potential for risk [in a low price proposal], consulted appropriate sources,
and … concluded that the offeror’s price was reasonable and realistic.” Preferred
Systems, 110 Fed. Cl. at 61. Preferred Systems imposes no affirmative duties on an
agency, and indeed is not even on point to this case. It does not support Davis’s position.

       B. The Coast Guard Did Not Improperly Favor BMT’s Proposal

       Finally, Davis makes two arguments that the USCG gave BMT preferential
treatment. First, Davis contends that in the first round of evaluation, “[t]he USCG
allowed BMT to augment [its] proposal without providing the same opportunity to the
other Proposers.” Pl. Mem. at 6. Second, Davis claims that the USCG gave unequal
consideration to the work experience of certain BMT and Davis personnel. Pl. Reply at
11. The Court will address each of these arguments below.

              1. The Coast Guard Did Not Conduct Discussions with BMT

       The Government does not dispute that in the circumstances of this solicitation, it
was not permitted to afford BMT (or any offeror) an opportunity to amend or revise its
proposal. However, the USCG argues that the BMT document about which Davis
complains – a “Process Guide,” discussed below – constituted a permissible clarification,
not a substantive proposal revision.

       The Federal Acquisition Regulation (“FAR”) distinguishes between two types of
actions in the proposal evaluation process: a “clarification” on the one hand, and a
“negotiation” or “discussion” on the other. The former is a “limited exchange[], between
the Government and [an] offeror[], that may occur when award without discussion is


                                             12
contemplated,” and which gives the offeror “the opportunity to clarify certain aspects of
proposals … or to resolve minor or clerical errors.” FAR § 15.306(a)(1)-(2).

      In contrast, the FAR defines a “negotiation” or “discussion” as:

      [an] exchange[] … between the Government and offerors, that [is]
      undertaken with the intent of allowing the offeror to revise its proposal.
      These negotiations may include bargaining. Bargaining includes
      persuasion, alteration of assumptions and positions, give-and-take, and may
      apply to price, schedule, technical requirements, type of contract, or other
      terms of a proposed contract. When negotiations are conducted in a
      competitive acquisition, they take place after establishment of the
      competitive range and are called discussions.

Id. § 15.306(d). Thus, as this Court recently recognized, “the term ‘discussion’ has a
specific legal definition” in the government contracting context: “discussions involve
negotiations and are undertaken with the intent of allowing the offeror to revise its
proposal.” G4S Tech., 2013 WL 935890, at *12 (quoting Galen Medical Assocs., Inc. v.
United States, 369 F.3d 1324, 1332 (Fed. Cir. 2004)). Further, the “acid test for deciding
whether discussions have been held is whether it can be said that an offeror was provided
the opportunity to revise or modify its proposal.” Linc Gov’t Servs., LLC v. United
States, 96 Fed. Cl. 672, 717 (2010) (quoting DynCorp Int’l LLC, 76 Fed. Cl. at 541).

        Nonetheless, as the Federal Circuit has emphasized, “[a]ny meaningful
clarification would require the provision of information.” Info. Tech. & Applications
Corp. v. United States, 316 F.3d 1312, 1323 (Fed. Cir. 2003) (“ITAC”). Thus, even “[i]f
a response [to an agency’s request for additional information] provides information
essential to evaluation criteria, increases a past performance score[,] or tips the scales
toward the offeror providing the clarification, it still may only be a clarification.”
DynCorp Int’l, 76 Fed. Cl. at 542 (citing ITAC, 316 F.3d at 1323). Finally, in close
cases, it is well-established that the government’s classification of a particular
communication as a clarification or a discussion “is entitled to deference from the court,”
as long as that classification is permissible and reasonable. Linc Gov’t Servs., 96 Fed.
Cl. at 717; ITAC, 316 F.3d at 1323.

        Here, Davis contends that a 25-page “Process Guide” submitted by BMT during
the first round of evaluations in response to a USCG request for clarification goes beyond
the limited definition of “clarification,” and therefore afforded the company an unequal
opportunity to engage in “discussions” with the agency. During the course of its first-
round evaluation, the USCG sent BMT a letter seeking clarification on, inter alia, the
company’s proposed management approach. The letter stated:



                                            13
      [Y]our proposal states ‘proven processes … will ensure the USCG … is
      able to rely on BMT to complete the requested work scope’ however
      nowhere in your technical proposal do you specify how you intend to meet
      the individual requirements of the specification. Please clarify this
      statement as to your intent to meet specification requirements.

AR 3826. In response, BMT sent the USCG a seven-page letter addressing this and other
requests for clarification posed in the USCG’s inquiry. In addressing the management
plan question in particular, BMT stated that it “will meet all specification requirements.
To describe how we intend to meet these requirements, we have attached our DRAFT
Process Guide for the Cutter Boat Pooling Program.” Id. 3824; see also id. 4692-716
(Process Guide). In addition, the company included within its letter a two-page
“summary response” addressing the USCG’s question. Id. 3823-24.

        The Court agrees with the Government that Davis has not carried its burden of
demonstrating that the Process Guide constituted a substantive revision to its proposal.
As noted above, any clarification must necessarily convey new information to the agency,
and the Court finds that the Process Guide did not cross the line between a clarification
and a revision. See ITAC, 316 F.3d at 1323. The Court acknowledges that, considered
de novo, this issue presents a somewhat close issue. However, the Court also recognizes,
as it must, the USCG’s discretion in this area, and finds that, in any event, the USCG’s
classification in this instance was both permissible and reasonable. See Linc Gov’t
Servs., 96 Fed. Cl. at 717; ITAC, 316 F.3d at 1323. Accordingly, this protest ground also
fails.

             2. The Coast Guard’s Error in Evaluating BMT’s Key Personnel Did Not
                Prejudice Davis

       In its opening brief, Davis argued that the USCG had improperly assigned it a
“marginal” rating for that portion of its proposal relating to the Staff Experience and Key
Personnel sub-factor. As relevant here, Davis had proposed [Mr. A] as the Program
Manager for the contract, and [Mr. B] as Site Foreman and Planner/Estimator. AR 3022.
The USCG rated this portion of Davis’s proposal “marginal” for three reasons. First, the
USCG expressed concern that [Mr. A], who already managed Davis’s entire Inflatable
Boat Division, would be “stretched thin” if he were to fill the CCBP Program Manager
role. AR 4526. Second, the USCG noted that [Mr. B’s]two years as a foreman and
eleven years of more generalized experience “working on government small craft” fell
short of the minimum required experience for both (1) the Planner/Estimator position,
which required a “minimum of 5 years in boat or ship productions,” and (2) the Site
Foreman position, which required a “minimum of 3years experience in boat or ship repair
as a foreman or [in a] leadership position.” Id.; see also id. 250.



                                            14
        Davis originally took issue with this assessment on two grounds. First, it argued
that its personnel were not required to “remain idle while the Government performs a
source selection.” Pl. Mem. at 9. Second, Davis argued that the “USCG misread the
resume of [Mr. B] … and downgraded Davis’s Planner/Estimator for no experience in
boat production. Since this was a repair solicitation Davis reasonably interpreted the
requirements as ship or boat repair production, not new boat production.” Id.

        The Government, for its part, responded that “it was within the USCG’s discretion
to determine that [Mr. A’s] dual roles would cause a risk of noncompliance with the
Specification,” and that “to the extent that Davis now claims [Mr. A] would have
relinquished his [other] role … after award, this is a post hoc revision” not contained
within Davis’s proposal. Gov’t Mem. at 19-20. The Government further argued, inter
alia, that Davis had failed to explain how the USCG had misperceived [Mr. B’s] two
years of relevant leadership of foreman experience, which was short of the three required
years under the terms of the solicitation. Id. at 20.

       Apparently perceiving its weaknesses, Davis dropped the personnel argument
entirely in its reply brief, and instead alleged, for the first time, that BMT’s proposed
Planner/Estimator also lacked any “new” boat or ship production experience and [that] no
mention was ever made of that fact.” Pl. Reply at 11. To the contrary, as Davis points
out, the USCG evaluated BMT’s proposed staff as “all exceed[ing] minimum
requirements[.]” Id. at 11-12 (quoting AR 4323). According to Davis, “[t]his evidences
the unequal and unfair treatment of the Offerors’ [sic].” Id. at 11.

        At this point, the Government concedes that “[u]pon review of the administrative
record, it appears that although BMT’s proposed Planner/Estimator does not possess the
solicitation’s required experience,” the USCG found the opposite to be the case. Gov’t
Reply at 17. Nonetheless, the Government contends that this error:

       could not have prejudiced Davis because it could not have [had] any impact
       upon the trade-off decision which eliminated Davis from the
       competition…. Davis’s ‘overall lack of understanding of the program
       requirements’ would not have changed. Rather, [such a revision] could
       only have impacted BMT’s rating of ‘Superior’ in one subfactor…. It
       would have had no effect upon the weaknesses in Davis’s proposal, which
       led to a finding of a lack of understanding: i.e., its ‘risky’ teaming
       arrangements, the lack of experience not only for its Planner/Estimator, but
       also the lack of experience for its Site Foreman, the potential for distraction
       for its Program Manager, its failure to propose a facility that meets the
       solicitation’s requirements, and its risky low price.

Id. at 18-19.


                                             15
       As explained above, Davis bears the burden of establishing, by a preponderance of
the evidence, that “but for the error, [it] would have had a substantial chance of securing
the contract.” Labatt Food Serv., Inc., 577 F.3d at 1378; Jacobs Tech. Inc., 100 Fed. Cl.
at 207. The Court agrees with the Government that, due to the other demonstrated
weaknesses in Davis’s proposal, Davis cannot meet this standard.

                                        Conclusion

        In summary, none of Davis’s arguments comes close to establishing its entitlement
to relief on the merits of its protest. This is especially so where, as Davis itself
acknowledges, “[t]he court must especially defer to the agency’s technical evaluations …
and other minutiae of the procurement process … which involve discretionary
determinations of procurement officials.” Pl. Mem. at 18-19 (quoting E.W. Bliss Co., 77
F.3d at 449); see also DynCorp Int’l, 76 Fed. Cl. at 537 (noting that “‘best value’ contract
awards give a contracting officer more discretion than awards based on price alone.”)
(citing Galen Medical Assocs., Inc., 369 F.3d at 1330). Further, while the USCG admits
error in its evaluation of awardee BMT’s personnel proposal, this error was without
prejudice to Davis.

      Accordingly, the Court DENIES Davis’s motion for judgment on the
administrative record, and GRANTS the Government’s cross-motion for judgment on the
administrative record, in which Intervenor-Defendant BMT joins. No costs.

       This decision is filed under seal. On or before May 24, 2012, counsel for the
parties shall carefully review this opinion for competition-sensitive, proprietary,
confidential, or other protected information and submit to the Court any proposed
redactions before the opinion is released for publication.

       IT IS SO ORDERED.

                                                  s/Thomas C. Wheeler
                                                  THOMAS C. WHEELER
                                                  Judge




                                             16
