       United States Court of Federal Claims
                                        No. 18-878 C
                                   Filed: August 31, 2018
______________________________
IMPACT RESOURCES, INC.,

              Plaintiff,

v.

UNITED STATES OF AMERICA,

              Defendant,

v.

TACTICAL EDGE, INC.,

          Defendant-Intervenor.
______________________________

     ORDER AND OPINION GRANTING DEFENDANT’S AND DEFENDANT-
       INTERVENOR’S CROSS-MOTIONS FOR JUDGMENT, DENYING
      PLAINTIFF’S MOTION FOR JUDGMENT, AND FINDING AS MOOT
                  DEFENDANT’S MOTION TO STRIKE

        Plaintiff, Impact Resources, Inc. (d/b/a IR Technologies), brings this post-award bid
protest seeking a permanent injunction against an agency award to intervenor, Tactical
Edge, Inc. The primary issue is whether the United States Marine Corps failed to follow
Federal Acquisition Regulation (“FAR”) 15.206 when it declined to amend the solicitation
in this procurement. FAR 15.206 states, “[w]hen, either before or after receipt of proposals,
the Government changes its requirements, or terms and conditions, the contracting officer
shall amend the solicitation.” The Administrative Record shows that the contracting
officer’s decisions with respect to this procurement were proper; we must therefore deny
plaintiff’s motion.

                                    BACKGROUND

        This case involves the award of an “indefinite delivery/indefinite quantity”
(“IDIQ”) contract to provide post-deployment support services for four interconnected
logistical information technology systems for the Marine Corps (“the agency”). The four
systems are: the Common Logistics Command and Control System, the Transportation
Capacity Planning Tool, the Storage Retrieval Automated Tracking Integrated System
(“STRATIS”), and Air Fortress secure wireless.

       Prior to this procurement, these systems were supported through separate contracts.
Plaintiff is the incumbent for the first two programs. CGI Federal, Inc., a subcontractor for
intervenor, is the incumbent for STRATIS, which uses Air Fortress to operate. The new
IDIQ contract has a sixty-month ordering period, consisting of a base year and four option
years. Proposals were due on April 28, 2017.

       The agency evaluated proposals through a best value determination considering five
factors: (1) Innovation Approach, (2) Technical Approach, (3) Management Approach, (4)
Past Performance, and (5) Price. The non-price factors, when combined, were significantly
more important than price; Factors 1 and 2 were the most important.

        Of the thirteen competing bidders, only plaintiff and intervenor submitted eligible
proposals. Intervenor received “outstanding” ratings for Factors 1 and 2, a “good” rating
for Factor 3, and a “very relevant/substantial confidence” rating for Factor 4. By contrast,
plaintiff’s ratings were “good,” “outstanding,” “acceptable,” and “relevant/satisfactory
confidence,” respectively. Intervenor’s total evaluated price was $32,828,605, while
plaintiff’s was $40,043,529.90. The agency determined that intervenor had both a
technically superior proposal and a lower total evaluated price compared to plaintiff. The
agency awarded the new, IDIQ contract to intervenor on February 14, 2018.

       Prior to award, in November of 2017, plaintiff requested that the contracting officer
amend the solicitation to reflect what plaintiff characterized as “changed requirements.”
Plaintiff stated that “published program schedules and conversations with program
personnel indicate that the [agency] intends to replace STRATIS with the Tactical
Warehouse Management System (“WMS”) and replace Air Fortress with HP Aruba
equipment during the first quarter of FY 2019.” Plaintiff felt that, for pricing and
investment reasons, the contract should not have required support for STRATIS if the
agency ultimately would eliminate the program.

       Plaintiff did not disclose from whom it received this information, but the contracting
officer was “aware of a recently awarded sole source task order with Oracle to provide a
[warehouse management system] module within the Oracle EBS used by the Marine
Corps.” This task order was issued to Oracle on July 31, 2017.

       The contracting officer declined to amend the solicitation. Instead, the Business
Clearance Memorandum shows that, in response to plaintiff’s request, the contracting
officer reviewed the “current requirement to support the STRATIS program and the point
in time when the replacement [Warehouse Management System] would potentially be
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available to replace STRATIS . . . .” The contracting officer noted that, based on the period
of performance of the Oracle Task Order, the replacement WMS would be “delivered no
earlier than one year after the contract award for the current solicitation.” The IDIQ was
awarded on February 14, 2018, and the period of performance for the Oracle Task Order
ends February 28, 2019, after the base ordering period is over.

       The contracting officer further stated that even after delivery of the Oracle WMS,
there would “still be a needed period of overlap” between the Oracle system and STRATIS.
The contracting officer also discussed the matter with the project’s Program Manager, who
“[was] still open to maintaining a STRATIS alongside a WMS if there was an affordable
and beneficial feature within STRATIS that was not provided by the WMS.”

       Finally, the contracting officer determined that the solicitation could not be
amended “because there was no specific requirement to transition from STRATIS to WMS
that could be used to prepare an amendment.” In particular, “there was no definite time that
could be stated in an amendment specifying when STRATIS would no longer be needed”
and STRATIS “would potentially still remain a useable program if it provided an
innovative capability at a reasonable cost that was not provided by WMS.”

                                  LEGAL STANDARD

       We review the contracting officer’s decision not to amend the solicitation under the
Administrative Procedures Act standard. An award may be set aside only if “(1) the
procurement official’s decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).

       When a protest alleges that an agency’s decision lacks a rational basis, “the test is
‘whether the contracting agency provided a coherent and reasonable explanation of its
exercise of discretion, and the disappointed bidder bears a “heavy burden” of showing that
the award decision had no rational basis.’” Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1351 (Fed. Cir. 2004) (citations omitted).

       To prevail, plaintiff also must show it was prejudiced by the agency’s alleged error.

                                      DISCUSSION

        A review of the Administrative Record shows that the contracting officer’s decision
not to amend the solicitation was reasonable. Plaintiff has not shown that the solicitation’s
requirements changed. The Record shows that while STRATIS may have been phased out
eventually, proposals needed to include support for the program for at least the first year
of the IDIQ. The potential Oracle replacement WMS would be delivered no sooner than
                                             -3-
one year after contract award, and even after delivery, there would “still be a needed period
of overlap” between the Oracle system and STRATIS.

       Moreover, the Record shows that a STRATIS phase out was not certain because it
could have remained viable after delivery of the Oracle replacement WMS. The Program
Manager “[was] still open to maintaining a STRATIS alongside a WMS if there was an
affordable and beneficial feature within STRATIS that was not provided by the WMS.”

       Additionally, plaintiff has not shown that it suffered prejudice because of the alleged
error or demonstrated how intervenor could have benefited from the agency’s decision. It
merely argues that “[h]ad the Marine Corps amended the solicitation to reflect its changed
needs, there would be no award to Tactical Edge and Impact Resources would have the
opportunity to compete for the amended solicitation.”

        As defendant noted, even if the STRATIS and Air Fortress requirements were
removed from the solicitation, this would result in a lower price for both intervenor and
plaintiff, preserving intervenor’s price advantage. The basis for price difference was
plaintiff’s pricing for another program. Price is also the least significant factor for
evaluation, and plaintiff does not challenge intervenor’s overall superior technical ratings.

                                      CONCLUSION

       The contracting officer did not commit error by declining to amend the solicitation;
his decision is supported by the Record. Moreover, plaintiff has not shown prejudice from
the contracting officer’s decision.

        Defendant’s and defendant-intervenor’s Motions for Judgment on the Record are
GRANTED. Plaintiff’s Motion for Judgment on the Record is DENIED. Defendant’s
Motion to Strike plaintiff’s attachments to its Motion for Judgment is MOOT and therefore
DENIED. Plaintiff’s Motion for Oral Argument is DENIED. Plaintiff’s Motion for Leave
to File a Third Declaration of Henry Friedman is DENIED.

       IT IS SO ORDERED.

                                           s/Robert H. Hodges, Jr.
                                           Robert H. Hodges, Jr.
                                           Senior Judge




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