         In the United States Court of Federal Claims
                                          No. 15-119C
                                          (Bid Protest)
                                     (Filed: July 14, 2015) 1

**************************
                          *                          Post-award Bid Protest; 28 U.S.C.
A-T SOLUTIONS, INC.,      *                          § 1491(b)(1); Transition Plan Feasibility;
                          *                          Cost Evaluation; Cost Realism Analysis;
           Plaintiff,     *                          FAR 15.404-1; Technical Evaluation;
                          *                          Adjectival Ratings; Unequal Treatment;
           v.             *                          Best Value Determination.
                          *
THE UNITED STATES,        *
                          *
           Defendant,     *
                          *
           and            *
                          *
CUBIC APPLICATIONS, INC., *
                          *
          Intervenor.     *
                          *
**************************

      J. Alex Ward, Damien C. Specht, Ethan E. Marsh, Jenner & Block LLP, 1099 New York
Avenue, NW, Suite 900, Washington, D.C. 20001, for Plaintiff.

       Benjamin Mizer, Robert E. Kirschman, Jr., Steven J. Gillingham, and James Sweet, U.S.
Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben
Franklin Station, Washington, D.C. 20044, for Defendant.

       Paul F. Khoury, Wiley Rein LLP, 1776 K Street, NW, Washington, D.C., for Intervenor.
Tracye Winfrey Howard and Nina Rustgi, Wiley Rein LLP, 1776 K Street, NW, Washington,
D.C. 20006, Of Counsel.




1
        The Court issued this opinion under seal on June 29, 2015, and directed the parties to file
proposed redactions by July 15, 2015. The Court publishes this Opinion indicating redactions by
asterisks “[***].”
             _________________________________________________________

                               OPINION AND ORDER
             _________________________________________________________

WILLIAMS, Judge.

        This post-award bid protest comes before the Court on the parties’ cross-motions for
judgment on the Administrative Record (“AR”). Plaintiff, A-T Solutions (“A-TS”), challenges
the Defense Threat Reduction Agency’s (“DTRA”) award of a contract to the incumbent Cubic
Applications, Inc. (“Cubic”) for the development and implementation of training programs to
counter threats from chemical, biological, or nuclear attacks or accidents. Plaintiff challenges
DTRA’s evaluation of Cubic’s proposed transition costs and staffing, and the assignment of
strengths and weaknesses to Cubic’s and A-TS’ proposals. Plaintiff requests that the Court
declare the award unlawful and permanently enjoin DTRA from performing the contract until the
Agency reopens the procurement and makes a new award. For the reasons that follow, the Court
denies the protest.
                                       Findings of Fact2

       DTRA’s Issuance of Solicitation No. HDTRA1-14-R-0003
        The mission of DTRA is to “safeguard America and its allies from weapons of mass
destruction (WMDs), specifically chemical, biological, radiological, nuclear, and high-yield
explosives (CBRNE) threats.” AR 152. DTRA provides the military, federal agencies, and
foreign allies with training to reduce and counter threats from chemical, biological, and nuclear
attacks or accidents. Id. DTRA’s Building Partnership Capacity Department (“J3BP”)
“institutionalizes training and concepts of operations,” “promotes counter WMD awareness” and
works to establish, test, and improve “both U.S. and foreign counter CBRNE and nuclear surety
capabilities, policies and procedures . . . .” Id.
        On January 31, 2014, DTRA issued solicitation number HDTRA1-14-R-0003 for
“technical, logistical, operational, training, and all associated ancillary support required to
develop, perform, and execute the J3BP Department’s counter CBRNE Exercise, Training,
Capability Assessment & Development mission sets.” Id. DTRA anticipated awarding one
indefinite delivery, indefinite quantity (“IDIQ”) contract and then issuing cost-plus-fixed-fee
task orders. AR 232, 234.
       The solicitation included three Sample Task Orders to be evaluated and awarded. The
contract had a five-year ordering period and an additional five-year option period. AR 2519.
The anticipated award date of the IDIQ contract was no later than September 5, 2014, with
Sample Task Orders 1 and 3 to be awarded within two business days of contract award and
Sample Task Order 2 to be awarded by December 2014. Id. Each Sample Task Order was split
into CLINs 0001 and 0002. CLIN 0001 was for a 60-day transition period from September 17,


2
       These findings of fact are derived from the AR. Additional findings of fact are in the
Discussion.
                                               2
2014 to November 16, 2014. Id. CLIN 0002, which called for the performance of three Sample
Task Orders, was to commence on November 16, 2014. Id.
        Sample Task Order 1 was for the development and implementation of training programs
to improve the consequence management capabilities of United States partner nations “during
the early phases of a CBNR incident . . . .” AR 250. Sample Task Order 2 was for the
development and implementation of training programs to counter the threat of international
proliferation of weapons of mass destruction. AR 283. Sample Task Order 3 was for the
development and implementation of joint training exercises to improve United States and partner
nation responses to nuclear accidents or incidents. AR 336. In the solicitation, the statement of
work for each Sample Task Order included transition work, stating:
       During the period September 17, 2014 through November 16, 2014, the contractor
       shall provide any and all transition support required during the 60 day transition
       period that may be required. Any and all transition costs shall be proposed and
       accumulated discretely under CLIN 0001 only.
AR 251, 284, 338.
       The contract was to be awarded on a best value basis using three factors: mission
capability, past performance, and cost. AR 236. Mission capability was more important than
past performance, which was more important than cost. Id. Mission capability included
Subfactor A – Management Approach and Subfactor B – Technical Approach. Id. The two
subfactors under mission capability were of equal importance and mission capability combined
with past performance was significantly more important than cost, although cost was to be
“carefully considered.” Id.
        DTRA was to evaluate Subfactor A based on offerors’ “comprehensive Management
Approach,” which defined and detailed how offerors would perform the contract requirements.
AR 237. Subfactor B required offerors to submit a comprehensive Technical Approach that
defined, detailed, and demonstrated offerors’ technical understanding and approach to executing
the SOW for each Sample Task Order effort. AR 238. Each technical approach was to include
Transition, Execution, and Staffing Plans. Id. The Staffing Plan had to correspond to the
Execution Plan and demonstrate that the proposed personnel possessed the required skills. Id.
       The solicitation included DTRA’s estimates of the staffing levels needed to perform each
Sample Task Order, expressed as a number of Full Time Equivalents (“FTEs”). One FTE was
the equivalent of 1,880 hours per year. Each Sample Task Order’s statement of work (“SOW”)
expressly advised Offerors that they “[were] not required to utilize the Government provided
FTE estimates.” See AR 251, 284, 338. The SOW further informed offerors that the estimated
FTEs were “provided for pricing purposes only and [would] be deleted from the SOW upon Task
Order award.” AR 251, 284, 338.
       In terms of cost, DTRA would
       evaluate the realism of the proposed cost/price by assessing whether the proposed
       cost elements for each Sample [Task Order] and transition plan 1) [were] realistic
       for the work to be performed; 2) reflect[ed] a clear understanding of the
       requirements; and 3) [were] consistent with the unique methods of performance

                                               3
       identified in the Offeror’s Technical Approach Execution Plan and priced with the
       identical quantity and labor mix of personnel identified in the Technical Approach
       Staffing Plan.
AR 243. The Government was to evaluate each offeror’s cost proposal for “realism,
reasonableness, and completeness.” Id. As part of its cost evaluation, DTRA would determine
the most probable cost “by adjusting the Offeror’s proposed cost and fee, when appropriate, to
reflect any additions or reductions in cost elements to realistic levels based on the results of the
cost realism analysis.” Id.

       Proposals
       DTRA received proposals from A-TS, the incumbent Cubic, and three other offerors. A-
TS and Cubic proposed the following FTE levels as compared to DTRA’s estimates:

                                       A-TS          Cubic    Agency Estimate
                                        FTE           FTE          FTE
                   Sample Task Order 1 [***]         [***]    36
                   Sample Task Order 2 [***]         [***]    17.8
                   Sample Task Order 3 [***]         [***]    29.5

AR 1697, 1779, 1835; AR 2934-35; AR 423, 284, 457.

        In its cost section, Cubic described its efforts to reduce costs, including proposing no cost
for transition. AR 1998. For CLIN 0001, the transition CLIN, for each Sample Task Order,
Cubic proposed zero hours and zero cost. See AR 2453. In its cost proposal, Cubic stated that
“the efforts required during the transition period will be performed by employees assigned to our
indirect rate pools.” AR 2009. In its Management Approach section, Cubic described its
transition plan and identified which employees would be involved and what their roles would be.
AR 1652-55. In its technical proposal, Cubic described how it would implement the transition
for each Sample Task Order, including the role and tasks of management employees. AR 1686,
1768-69, 1827-29. Furthermore, Cubic represented that its corporate structure assigned “most
incumbent transition tasks to [its] overhead organization.” AR 1687.

       Proposal Evaluation and Award
        The Source Selection Evaluation Board (“SSEB”) contained a three-member Mission
Capability Evaluation Team, a two-member Past Performance Risk Assessment Group, and a
three-member Cost Evaluation Team. AR 2524. The SSEB applied the definitions of strengths
and weaknesses set forth in the solicitation. The SSEB evaluated not only each strength or
weakness, but also “the benefit of the strength to the Government or the impact of the weakness
on performance.” AR 2533. The SSEB used the following ratings, as set forth in the
solicitation:
       Significant Strength: An aspect of an Offeror’s proposal that has substantial merit
       or substantially exceeds specified performance or capability requirements in a
       way that will be advantageous to the Government during contract performance.


                                                 4
       Strength: An aspect of an Offeror’s proposal that has merit or exceeds specified
       performance or capability requirements in a way that will be advantageous to the
       Government during contract performance.
       Significant Weakness: A flaw in the proposal that appreciably increases the risk
       of unsuccessful contract performance.
       Weakness: A flaw in the proposal that increases the risk of unsuccessful contract
       performance.
AR 2533.
       In assessing risk, the Government considered the degree to which an offeror’s proposed
approach might cause “a disruption of schedule, increased costs, degradation of performance,
need for increased Government oversight, or the likelihood of unsuccessful contract
performance.” Id.
       As required by the solicitation, the SSEB used the following adjectival ratings:
       Outstanding: Proposal meets requirements and indicates an exceptional approach
       and understanding of the requirements. Strengths far outweigh any weaknesses.
       Risk of unsuccessful performance is very low.
       Good: Proposal meets requirements and indicates a thorough approach and
       understanding of the requirements. Proposal contains strengths which outweigh
       any weaknesses. Risk of unsuccessful performance is low.
       Acceptable: Proposal meets requirements and indicates an adequate approach and
       understanding of requirements. Strengths and weaknesses are offsetting or will
       have little or no impact on contract performance. Risk of unsuccessful
       performance is no worse than moderate.
       Marginal: Proposal does not clearly meet requirements and has not demonstrated
       an adequate approach and understanding of the requirements. The proposal has
       one or more weaknesses which are not offset by strengths. Risk of unsuccessful
       performance is high.
       Unacceptable: Proposal does not meet requirements and contains one or more
       deficiencies. Proposal is not awardable.
AR 2534.
       The parties received the following ratings for Subfactor A – Management Approach:

                         Rating           Significant          Strengths         Weaknesses
                                          Strengths
      A-TS                Good                 2                   2                      0
      Cubic               Good                 1                   2                      0

AR 2575-77, 2610-11.

                                                5
       For Subfactor B – Technical Approach, Cubic received an “outstanding” rating overall
and the following number of strengths and weaknesses:
                                               Cubic

                               Significant          Strengths       Weaknesses
                               Strengths
           Sample Task              2                  0                  2
             Order 1
           Sample Task              3                  1                  0
             Order 2
           Sample Task              3                  0                  0
             Order 3

AR 2578-87.

        For Subfactor B – Technical Approach, A-TS also received an “outstanding” rating
overall and the following strengths and weakness:

                                             A-TS

                               Significant          Strengths       Weaknesses
                               Strengths
           Sample Task              3                  3                  1
             Order 1
           Sample Task              1                  2                  3
             Order 2
           Sample Task              2                  3                  1
             Order 3

 AR 2612-25. For the past performance factor, both A-TS and Cubic received the highest
“substantial confidence” rating. AR 2702.

       Cubic and A-TS submitted the following prices, as compared to the IGCE:


                     Sample Task        Sample Task        Sample Task           Total
                       Order 1            Order 2            Order 3
     Cubic              [***]              [***]              [***]              [***]
      A-TS              [***]              [***]              [***]              [***]
  Independent           [***]              [***]              [***]              [***]
  Government
  Cost Estimate

AR 2709.

                                              6
        The Government conducted a price analysis and determined that adequate price
competition established price reasonableness, as there were five offerors. AR 2709-10. For each
offeror, the Government also performed a cost realism analysis to determine whether the
proposed cost elements were realistic for the work to be performed, consistent with the offeror’s
technical proposal, and reflected a clear understanding of the requirements. AR 2711. Although
the Government could have determined a “most probable cost” for each proposal by “adjusting
each offeror’s proposed cost and fee to reflect any additions or reductions in cost elements,” it
did not make any adjustments to either Cubic’s or A-TS’ cost proposal and found that both
proposals were realistic. AR 2712, 2726, 2738.
       The 11-member Source Selection Advisory Council (“SSAC”) created a Comparative
Analysis Report, determined that the SSEB’s evaluation was proper, and agreed to recommend
award to Cubic without discussions. AR 2755, 2760. The SSAC agreed that both Cubic and A-
TS merited a “good” rating for Subfactor A – Management Approach as both had a “thorough
approach and understanding of the requirements,” and that both Cubic and A-TS merited an
“outstanding” rating for Subfactor B – Technical Approach because they demonstrated an
“exceptional approach and understanding of the requirements.” AR 2763-65. The SSAC
unanimously concurred with all of the SSEB’s findings on price. AR 2767-69. The SSAC found
that
       [b]ased on the costs of the two essentially equally rated offers, Cubic and A-T
       Solutions, . . . the [***] higher proposed cost of A-T Solutions was not offset by
       the proposed technical benefits.
AR 2770. A-TS’ price was [***] higher than Cubic’s. AR 3372.
       On June 23, 2014, the Source Selection Authority (“SSA”) issued his Source Selection
Decision Document. AR 2775-77. In this decision, the SSA determined that Cubic’s “proposal
provide[d] the best overall value to satisfy the requirements of [DTRA].” Id. The SSA stated:
       Utilizing the results of the evaluation conducted by the SSEB, the strengths and
       weaknesses outlined in that evaluation, and the SSAC Comparative Analysis
       Report, I have conducted an integrated assessment of the proposals using the
       criteria and order of importance established in Section M of the RFP. As
       evidenced in the evaluation results, Cubic Applications, Inc. provided the overall
       best value to meet the Government’s requirements.
       In the final analysis, Cubic Applications, Inc. and A-T Solutions were determined
       to be essentially equal for Mission Capability with a Good for Management
       Approach and Outstanding for Technical Approach. Both companies also
       received a rating of Substantial Confidence regarding past performance. However,
       the Cubic proposal was approximately [***] less than A-T Solutions. The
       difference in estimated cost is not overcome by any other factors.
AR 2776-77. The SSA thus decided to award the contract to Cubic without discussions, and
award was made on July 23, 2014. AR 2777.



                                               7
A-TS’ GAO Protest
        On August 4, 2014, A-TS filed a protest before the Government Accountability Office
(“GAO”). A-TS’ grounds of protest were very similar to those raised here, specifically that
DTRA failed to appreciate the risk of Cubic’s low staffing and that it failed to properly assign
strengths and weaknesses to the Cubic and A-TS proposals. AR 2928-29. GAO            held     an
outcome prediction conference on October 31, 2014, and opined that the protest would be
sustained for two reasons – 1) DTRA’s assignment of a weakness to A-TS for proposing
individuals whose hours exceeded those of a Full Time Equivalent, but not to Cubic, which also
proposed individuals in excess of a Full Time Equivalent and, 2) DTRA’s improper award of a
strength to Cubic for purchasing non-refundable airline tickets, as this was required of all
contractors. AR 3287. On November 3, 2014, the Agency decided to take corrective action and
reevaluate this weakness and strength, “[r]econsider the overall evaluation of offerors based on
any revisions to the mission capability evaluation of offerors,” “reconsider the award decision
based upon the reevaluated strengths and weaknesses,” and “[i]ssue a new award decision.” AR
3287-88.

       DTRA’s Corrective Action
        The chair of the SSEB issued a new document containing “Post-Protest Source Selection
Evaluation Board Results” on November 13, 2014. AR 3294. The SSEB removed the strength
that Cubic had received for Sample Task Order 2 related to the non-refundable airline tickets.
AR 3320. For A-TS, the SSEB removed one weakness and “reworded” another weakness.3 AR
3332. The removed weakness, for Subfactor B – Technical Approach in Sample Task Order 2,
stated “Offeror has one individual whose hours exceed 1 FTE (352 for CLIN 1; 1880 for CLIN
2) without explanation ([Sample Task Order] 2 – page 52).” AR 3340. A-TS’ original weakness
was for Subfactor B – Technical Approach in Sample Task Order 3 and similarly stated:
       Offeror has one individual whose hours exceed 1 FTE (352 for CLIN 1; 1880 for
       CLIN 2) without explanation ([Sample Task Order] 3 – page 59).
AR 3345. The impact/risk of the original weakness was listed as “Government is uncertain why
one individual is exceeding 1 FTE hours.” Id.
       As part of its corrective action, DTRA did not remove this weakness and restated it as
follows:
       Offeror provided an inconsistent staffing plan for Transition. The Senior Exercise
       Planner is proposed to work 544 hours during transition (page 194 para 1.1
       Transition) however, in Exhibit 73 (page 167) the Senior Exercise Planner is not
       identified and instead the hours are divided between Program Analysts.
AR 3346. DTRA assessed the new impact/risk of this reworded weakness as follows:
       [b]ecause of the inconsistency in the proposal the Government doesn’t understand
       the transition staffing and [sic] proposed transition tasks would be accomplished.

3
       Although DTRA characterized this weakness as having been “reworded,” Plaintiff
disputes this and contends that DTRA actually created a new weakness. See AR 3332.
                                               8
Id.
        On January 17, 2015, the SSA issued a new Source Selection Decision Document, noting
that no changes were made to Cubic’s or A-TS’ Subfactor A – Management Approach, and thus
both retained a “good” rating. AR 3369, 3373. The SSA stated that the removal of Cubic’s
strength for non-refundable airline tickets was “insignificant and did not impact the original
evaluation results,” and that Cubic’s Subfactor B – Technical Approach rating remained
“outstanding.” AR 3369. The SSA also addressed the SSEB’s and SSAC’s revised statements
of A-TS’ weaknesses. The SSA noted that the SSEB determined that the removal of one
weakness and the “rewording” of another “were insignificant to the overall findings and did not
impact the original evaluation results.” AR 3369-70. The SSA stated that Cubic’s and A-TS’
Subfactor A and B proposals were roughly equivalent. AR 3370. The SSA added a new
assessment of the relative best value of the proposals of A-TS and Cubic, stating that he was
particularly impressed by Cubic’s experience doing business in over 85 countries and Cubic’s
pre-engagement strategy for each Sample Task Order. Id.
        The SSA noted that the Contracting Officer “did a verification of the proposed costs to
ensure [there were] no changes to the evaluation during the delay associated with the protest and
verified the original costs were complete, reasonable and realistic.” AR 3371. The SSA
continued:
       Cubic’s labor rates were higher than [A-TS’]; however Cubic offered to do the
       work with fewer hours through an efficient approach. Cubic proposed [***],
       which provided an exceptional process to support Government surge requirements
       and a thorough approach to support international logistics and an exceptionally
       through [sic] understanding of the technical requirements. [A-TS’] proposal also
       provided a large skill pool complimented by both full time and part time
       positions, and cross-functional area qualified instructors with teaching credentials,
       however the benefits to the Government did not outweigh the approximately
       [***] additional cost. As noted before, both Cubic and [A-TS] were judged
       essentially equal on the Mission Capability Factor; Subfactor A – Management
       Approach (both GOOD/PURPLE) and Mission Capability Subfactor B –
       Technical Approach (both OUTSTANDING/BLUE).
       In analyzing the costs, it was noted that about [***] of Cubic’s [***] in lower
       costs were attributable to reduced labor hours. The balance of the difference (in
       Cubic’s favor) were associated with the fringe, labor overhead, G&A, materials
       handling, and their fixed fee. The lower Cubic rates in fringe, labor overhead,
       G&A, materials handling, and fixed fee will benefit the Government on future
       task orders.
       The nearly [***] would be an immediate savings. However, the approximately
       [***] in savings could be extrapolated for the life of the contract. By selecting
       Cubic, the Government, in theory, would be obtaining [***] more effort than [A-
       TS] over the five year period of performance.
AR 3372. The SSA determined that it was in the Government’s best interest to award the
contract to Cubic without discussions. AR 3373.

                                                9
       The GAO dismissed A-TS’ protest on November 3, 2014, due to DTRA’s decision to
take corrective action. AR 3366. After the SSA issued his post-GAO protest Source Selection
Decision on January 7, 2015, A-TS filed the instant protest on February 6, 2015. The
Government voluntarily stayed award until June 30, 2015. Compl. ¶ 4 n.1.
                                            Discussion

       Standard of Review

        The Court evaluates bid protests pursuant to the Administrative Procedure Act’s standard
of review for an agency action. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir.
2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001)). This Court will not disturb an agency’s procurement decision unless the
Court finds that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A) (2012); Adams & Assocs. v. United States, 741 F.3d
102, 105-06 (Fed. Cir. 2014). The Court will set aside an agency’s decision as arbitrary and
capricious if “the agency ‘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] is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.’” Ala. Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375 (Fed. Cir.
2009) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)). The Court will “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974). The Court will not overturn an agency decision “even
though it might, as an original proposition, have reached a different conclusion as to the proper
administration and application of the procurement regulations” if the Court finds a reasonable
basis for the agency’s action. Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir.
1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).

        If this Court finds that the agency acted arbitrarily or capriciously or contrary to law, the
plaintiff must also show that it was prejudiced by this conduct to prevail. Bannum, 404 F.3d at
1351. The plaintiff must show that there was a “substantial chance” the plaintiff would have
received the contract award but for the Government’s errors in the procurement process. Id. at
1358. Under Rule 52.1, the parties are limited to the AR, and the Court makes findings of fact as
if it were conducting a trial on a paper record. See id. at 1356. Looking to the AR, the Court
must determine whether a party has met its burden of proof based on the evidence in the record.
Id.

       DTRA Correctly Evaluated Cubic’s Staffing
       A-TS challenges DTRA’s evaluation of Cubic’s staffing in two respects – its evaluation
of Cubic’s Technical Approach and its cost realism analysis. As to the Technical Approach, A-
TS asserts that “the record contains no documents” showing that DTRA “determined that Cubic
could perform the Sample Task Orders with just [***] percent of the Government’s staffing
estimate.” Pl. Mot. 17-18. A-TS also takes issue with the post-protest Source Selection
Decision claiming that the SSA did not specifically acknowledge that Cubic’s proposed staffing
was “sharply lower than the Government estimate.” Id. at 18-19. Finally, A-TS contends that

                                                 10
DTRA’s technical evaluation was arbitrary and capricious because it did not contain a “coherent
and reasonable explanation” of DTRA’s exercise of discretion. Id. at 19-20.
         Plaintiff’s efforts to undermine the technical evaluation fail. The record contains ample
documentation demonstrating that Cubic’s lower staffing was fully disclosed by Cubic and
understood by the Agency. Cubic not only put the Government on notice that it planned to use
lower staffing levels than the Agency estimate, it touted that approach as a cost savings measure.
The solicitation did not require offerors to propose a minimum number of FTE to be responsive,
or to explain any variation from the Agency’s estimated FTE levels. Rather, offerors were free
to utilize their manpower as they saw fit to complete the Sample Task Orders.
        In its proposal for each Sample Task Order, Cubic detailed how it had arrived at its
proposed staffing levels based on historical performance data, including a table of such data over
different months in 2012 and 2013, for Sample Task Orders 1 and 3. AR 1697, 1835. Cubic not
only explained its approach in its narrative, it depicted its staffing graphically. For each Sample
Task Order, Cubic included a graph showing how its specified number of employees assigned to
a given task would vary by month, representing “how the Cubic Team [would] support the [Task
Order] execution with significantly less FTEs than the Government estimate.” Id. Cubic
represented that it would be able to keep its core staff to a minimum, as it had done over the last
10 years. Id.
        Cubic’s Execution Plan detailed how it would perform each Sample Task Order with the
number of employees that it proposed. See AR 1684-1748; 1762-1817; 1824-87. For example,
Cubic provided a Staffing Plan that listed over 60 of its and its subcontractor’s employees and
cross-referenced their work with the requirements of the solicitation’s SOW for Sample Task
Order 1. AR 1724-25. Similarly, Cubic’s proposal for Sample Task Orders 2 and 3 detailed the
anticipated roles of numerous identified employees in completing the contract tasks. See AR
1762-1817; 1824-87.
        Contrary to Plaintiff’s contention, not only did Cubic highlight that it would use less
staffing, but the SSA also clearly articulated his understanding that Cubic would expend fewer
hours to perform. In his second Source Selection Decision Document, the SSA stated:
       Cubic’s labor rates were higher than [A-TS’]; however Cubic offered to do the
       work with fewer hours through an efficient approach. Cubic proposed [***],
       which provided an exceptional process to support Government surge requirements
       and a thorough approach to support international logistics and an exceptionally
       through [sic] understanding of the technical requirements.
AR 3372.
        Nor has Plaintiff established that DTRA failed to rationally explain its award to Cubic.
This was a best-value procurement. The SSA’s post-GAO protest Source Selection Decision set
forth elements of Cubic’s proposal that he found valuable, including Cubic’s international
presence and Cubic’s pre-engagement strategy on Sample Task Order 1. AR 3370. He
concluded that while A-TS’ and Cubic’s Technical Approaches were roughly equivalent in
merit, Cubic had an exceptionally thorough understanding of the technical requirements, and an
“efficient approach” that allowed it to do the work using fewer hours, providing the Government

                                                11
with a cost savings of almost [***]. AR 3372. In sum, Plaintiff’s challenges to DTRA’s
technical evaluation of staffing and the award to Cubic are not supported by the record.

       The Cost Realism Analysis Was Reasonable
        Second, A-TS argues that DTRA failed to properly conduct a cost realism analysis and
“did not adjust Cubic’s proposed costs to account for its low staffing levels.” Pl. Mot. 22.
According to A-TS, the Agency should have adjusted Cubic’s proposed costs to reflect the
insufficient staffing levels it proposed. Id. This, A-TS contends, would have forced the Agency
to add additional hours to Cubic’s proposed staff levels, therefore significantly increasing
Cubic’s costs. Id.
        As cost realism determinations are within an agency’s “sound discretion and expertise,”
the Court will not overturn a cost realism determination unless the plaintiff demonstrates the
absence of a rational basis for the agency’s decision. CTA Inc. v. United States, 44 Fed. Cl. 684,
693 (1999). It is unnecessary for an agency to demonstrate that a required cost realism analysis
was conducted with “impeccable rigor.” OMV Med. Inc. v. United States, 219 F.3d 1337, 1334
(Fed. Cir. 2000). In performing a cost realism analysis, an agency independently reviews and
evaluates the elements of an offeror’s proposed cost estimate “to determine whether the
estimated proposed cost elements are realistic for the work to be performed; reflect a clear
understanding of the requirements; and are consistent with the unique methods of performance
and materials described in the offeror’s technical proposal.” 48 C.F.R. § 15.404-1. Agencies are
required to do more than merely state that a cost realism analysis was performed. Cohen Fin.
Servs., Inc. v. United States, 110 Fed. Cl. 267, 286-87 (2013).
        Plaintiff’s cost realism argument is predicated on its erroneous assumption that Cubic’s
staffing levels were too low and had to be adjusted upward with a concomitant increase to
Cubic’s price. This construct is flatly wrong as explained above. While Cubic’s staffing levels
were lower than A-TS’ and the Government estimate, the Agency reasonably determined that
they were not too low, and there is no basis for the Court to impose the so-called cost realism
adjustment Plaintiff proposes. See AR 2726, 3366. DTRA had a rational basis for concluding
that Cubic’s staffing proposal met the requirements of the solicitation and that Cubic’s cost
proposal was realistic. A-TS’ contention that DTRA should have adjusted Cubic’s costs is
without merit.4




4
        A-TS also speculates that the Agency misunderstood Cubic’s [***] in evaluating its
lower FTEs. Pl. Mot. 19. A-TS presumes that the staffing difference between the Government’s
FTE estimates and Cubic’s proposal was due to Cubic cutting hours for management and
support. Pl. Reply 10. Using Sample Task Order 2 as an example, A-TS posits that because
[***] Cubic’s proposal should have had less hours for these roles, not more, if the lower staffing
levels in its proposal were truly due to [***]. Id. A-TS’ unproven assumptions do not provide a
basis to substitute A-TS’ purported evaluation for that of the Agency.


                                               12
       DTRA’s Technical Evaluation of Cubic’s Transition Plan Was Reasonable
        A-TS also claims that the Agency failed to evaluate whether Cubic’s transition plan was
technically feasible. Pl. Mot. 9. A-TS contends that Cubic’s transition plan generated
inconsistencies that were not addressed by the Source Selection Board, making it unclear
whether Cubic’s proposed transition plan was technically feasible. Specifically, A-TS asserts
that, in its transition plan, Cubic assigned its incumbent employees to work on two contracts at
the same time -- the incumbent contract and the new award -- and committed direct staff to work
on the new contract’s transition CLINs, while claiming that transition tasks would be performed
only by indirect staff. Id. at 11-12.
       Cubic’s technical proposal described its transition plan as follows:
       Detailed transition planning is critical to a smooth transition of personnel,
       execution tasks, and material from the current contract to this new task order
       (TO). We acknowledge that this is a new contract with new contractual
       requirements and CDRLs. The program’s transition period from 17 September to
       16 November 2014 corresponds to the end of our current incumbent task order
       period of performance.
       We will continue to execute all technical tasks on the current contract through the
       transition period. Our Corporate overhead staff will complete all security,
       contractual, and HR requirements associated with the new contract prior to 16
       November. Our approach ensures no disruption to existing services and the
       smooth implementation of new services and contract options. Performing the
       majority of our work now, our approach keeps our Country Leads and currently
       assigned staff focused on supporting their assigned operations, while our
       leadership team and support staffs focus on transitioning to the new task order
       contract vehicle. This approach ensures continuity of operations and a successful
       transition.
AR 1686.
        A-TS argues that Cubic assigned its incumbent employees to work on two contracts at
once because, in its Management Approach, Cubic stated that the incumbent Program Managers
were “fully vested in their respective programs” yet also described these individuals as working
on the transition to the new contract. Pl. Mot. 11-13; AR 1654. A-TS attempts to divine an
inconsistency where none exists. Cubic’s proposal did indicate that managers would be working
both on the incumbent contract and on overseeing the transition. However, it is not inconsistent
for managers to be “fully vested” in their respective programs and oversee transition – it is a
sound business judgment to use managers with program experience to ensure a smooth 60-day
transition.5 Much of A-TS’ complaint here can be attributed to Cubic’s status as the incumbent,
but neither this reality nor Cubic’s proposed transition gives rise to A-TS’ suggested
inconsistency.

5
        Because Cubic is not charging any costs for transition to its new contract, there is no risk
that the Government is paying too much for this effort.

                                                 13
        A-TS also asserts that the assignment of transition tasks to direct management personnel
was at odds with Cubic’s assertion that its corporate overhead staff would “complete all security,
contractual, and HR requirements” associated with the new contract. Pl. Mot. 11-13; AR 1686.
A-TS ignores that Cubic described how the transition would be managed by a specified team of
employees and how its corporate overhead staff would complete other activities. AR 1686-89.
Cubic represented that its corporate structure assigned “most incumbent transition tasks to [its]
overhead organization.” AR 1687 (emphasis added). In its proposal, Cubic broke transition
down into transition management and staffing. For Sample Task Order 1, the management
section stated that transition would be done “under the guidance” of [***].6 AR 1686. [***],
Cubic’s Program Manager, was tasked with the “overall responsibility to plan, organize, direct
and control the transition” and would work with [***], the Deputy PM, to “manage the
development and updating of team procedures and team training requirements.” Id. Cubic also
identified “key participants in management transition” as the “[CBRN Preparedness Program]
Coordinator,” the “Country Leads,” and “selected members” of a subcontractor’s “logistics
support team.” Id. In the staffing section, Cubic proposed that incumbent staff who were
engaged in the “planning, execution or after-action phases on the current contract” would not be
switched to the new contract until day one of the new performance period. AR 1687.
       Here, DTRA reasonably accepted Cubic’s detailed transition plan. The solicitation did
not break out what specific tasks had to be done for transition. Instead, it required that offerors
provide transition plans that would:
       [S]pecifically define, detail, and demonstrate all aspects of ramp-up including
       transition risks with mitigation strategies and staffing schedules, training and data
       capture for all prime and subcontracted efforts as necessary . . . [and] . . . define
       and detail how the proposed Transition Plan [would] reduce impact to current
       schedules, and detail how and when the offeror will have processes and
       procedures in place.
AR 238. Plaintiff’s attempt to unearth another inconsistency in Cubic’s transition plan based
upon the assignment of transition tasks to direct, as opposed to overhead, employees is not
supported by the record. There is no “technical” problem or inconsistency with Cubic’s ability
to perform transition based upon the direct or overhead status of its employees.

       Plaintiff Did Not Establish that the Agency Misevaluated Cubic’s Transition Costs
        A-TS asserts that DTRA failed to understand that Cubic’s cost proposal for transition was
unrealistic, relying on its own comparison of Cubic’s cost proposal with Cubic’s technical
proposal. A-TS argues that Cubic’s cost proposal was unrealistic because Cubic proposed no
costs for transition while appearing to assign many staff members to transition in its technical
proposal. Pl. Mot. 13-15. That Cubic proposed charging zero hours for its transition effort in its
cost proposal does not invalidate its technical proposal. The SOW for each Sample Task Order
required that “[a]ny and all transition costs shall be proposed and accumulated discretely” under
CLIN 0001. AR 251, 284, 338. For CLIN 0001, in every applicable table and chart in its cost
proposal, Cubic indicated that it was charging $0 for all transition efforts, including direct labor.
See, e.g., AR 2047.

6
       The parties base their arguments on the transition plan in Sample Task Order 1.
                                                 14
       Indeed, Cubic’s proposal reiterated that it would charge $0 for transition in several
instances:

               “We have not proposed costs for transition. The required transition tasks will be
                performed by our indirect staff.” AR 1998.
               “The required transition tasks will be performed by our indirect staff, therefore
                CLIN 0001 is $0. Please refer to Paragraph 14.4 below and Volume II, Section
                1.0: Sample Tasks, pages 1-3 of each.” Id.
               “CAI, along with the subcontractors, have not priced a Transition Period. As
                described in Volume II, Section 1.0: Sample Tasks, pages 1-3 of each, the efforts
                required during the transition period will be performed by employees assigned to
                our indirect rate pools.” AR 2009.
               $0 for transition was represented on Cubic’s charts and labor hour summaries for
                each Sample Task Order. AR 2459, 2478, 2495.
               “In no case do we anticipate charging new employee labor to the transition
                CLIN. Administrative and training actions in preparation for performance will be
                at no cost to the Government.” AR 1687, 1829.
        As Cubic represented numerous times in its proposal that there would be no cost for
transition, the risk for a no-cost transition remained exclusively on Cubic. Cubic could not
charge for transition when it affirmatively represented multiple times in its proposal that it would
not. Contractors are permitted to absorb costs in their proposals. Where the contractor
undertakes such a business judgment, the Government is not required to adjust the contractor’s
proposal to account for the absorbed costs. See In Re Science Applications, Int’l Corp., B-
232548, 1989 WL 240237 at *14 (Comp. Gen. Jan. 23, 1989).
        A-TS attempts to create another inconsistency by arguing that Cubic’s cost proposal
stated that it would not charge for transition only because it would be using indirect employees,
while its technical proposal stated that some direct employees would work on transition. This
argument is a red herring. The language and charts in Cubic’s proposal make clear that no matter
what type of employee would work on transition, Cubic would not charge the Government for
this effort. A-TS might have a point if despite offering no-cost indirect employees for transition,
Cubic’s proposal inconsistently slipped in costs for some direct employees or was unclear about
what it was charging for transition efforts of direct employees. This is not the case here. While
Cubic’s cost proposal did reference its use of indirect employees in discussing its no-cost
transition, it consistently and repeatedly assured the Government that there would be no cost for
transition. Contrary to A-TS’ suggestion, there is no basis in Cubic’s proposal to infer that there
would or could be a cost for any direct employees’ transition efforts. The Agency did not err in
its evaluation of Cubic’s transition cost.

       The Agency Did Not Treat A-TS Unequally in the Technical Evaluation
        A-TS argues that DTRA treated it unequally in the technical evaluation by failing to
award it certain strengths and by assigning it a weakness in evaluating its Sample Task Order 3
when taking corrective action. Pl. Mot. 24-31. In essence, Plaintiff asks the Court to reevaluate
its proposal. In this endeavor, Plaintiff faces an uphill battle. This Court does not sit as a super
source selection authority to second guess and re-score offerors’ proposals. Rather, it is well
established that the Court should not substitute its judgment to assess the relative merits of
                                                15
competing proposals in a government procurement. AshBritt, Inc. v. United States, 87 Fed. Cl.
344, 367 (2009) clarified by, amended by AshBritt, Inc. v. United States, 87 Fed. Cl. 654 (2009)
(citing R & W Flammann GMBH v. United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003)
(internal citations omitted)).
        The FAR requires “integrity, fairness, and openness” in procurements and prohibits
Government personnel involved in the acquisition from engaging in conduct that favors one
offeror over another. See CMI Mgmt. v. United States, 115 Fed. Cl. 276, 300 (2014) (citing 28
C.F.R. § 1.102(b)(3); 28 C.F.R. § 15.306(e)(1)). “The agency’s failure to follow the terms of its
own Solicitation and selection of an offeror based upon different requirements than those
imposed upon the only other offeror are quintessential examples of conduct which lacks a
rational basis.” Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004). Contracting
officers are obligated to treat all offerors equally, “evaluating proposals evenhandedly against
common requirements and evaluation criteria.” NCL Logistics Co. v. United States, 109 Fed. Cl.
596, 626 (2013) (quoting Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 383
(2003), aff'd 365 F.3d 1345 (Fed. Cir. 2004); 48 C.F.R. § 1.602-2). Indeed, “an agency action is
arbitrary when the agency offered insufficient reasons for treating similar situations differently.”
Id. (quoting Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996)). However,
offerors who are not similarly situated may be treated differently. See NCL Logistics Co., 109
Fed. Cl. at 626.

       Cubic Was Properly Given a Strength for International Logistics
        A-TS failed to demonstrate that DTRA should have considered its technical proposal on
international logistics to be equal to Cubic’s. DTRA awarded Cubic a Management Approach
strength for its thorough approach to international logistics, finding it was doing business in over
85 countries, regularly using local nationals as employees in foreign countries, and negotiating
vendor agreements in support of international operations. AR 3438. The benefits of this
strength to the Government were a strong likelihood of cost savings, streamlining logistic
requirements through existing relationships, and offering reliable quality. Id.
        A-TS asserts that DTRA misunderstood and “implicitly re-wrote Cubic’s proposal to
include benefits that the Agency valued but that Cubic did not actually offer” because the
proposal did not fully list the 85 countries and did not state that Cubic planned to use these
existing local national vendor relationships. Pl. Mot. 25. This argument is devoid of merit.
Cubic actually tied its work in 85 countries to this solicitation requirement, while A-TS’
Subfactor A – Management Approach did not contain a description of how its international
presence would help it manage the contract. In its Management Approach, under the subheading
“1.1.6.1.1 Technical Performance Requirements [SOO 4.2 a. – h.],” Cubic represented that it was
currently performing “all Technical Performance Requirements (TPR) as specified in SOO
paragraph 4.2 on our current incumbent contracts.” AR 1666. Cubic then stated that it was
providing “[a] brief overview of the processes we use to perform these requirements . . . .” Id.
In a section within subheading 1.1.6.1.1 labeled “In-Country Logistical Support [SOO 4.2.e],”
Cubic described the work its subcontractors would do to provide in-country logistical support
and concluded that “[i]n addition, both Cubic and [a subcontractor] are large multinational
companies doing business in over 85 countries with offices throughout the world. We regularly
employ local national employees and negotiate vendor agreements in support of international
operations.” AR 1667.
                                                16
         A-TS also argues that its own proposal “was plainly superior in this area” because it
“explained that its overseas reach involves work specifically relevant to this contract” in 45
different countries, and “identified its key overseas locations and pledged those locations to
support this contract.” Pl. Mot. 25-26. A-TS points out a variety of places in its proposal where
it referred to its international activities in 45 different countries. Pl. Mot. 26 (citing AR 763, 800,
875, 808, 780). However, only one mention of “45 countries” was in A-TS’ Subfactor A –
Management Approach, contained in a general description of A-TS in its identification of prime
and subcontractors. AR 763.7 In its Management Approach section on Offsite Facilities, A-TS
listed 16 international cities that were available to support program operations. AR 780. Other
mentions of A-TS’ international presence were contained in its Technical Approach as part of its
description of how it would perform the Sample Task Orders.
       In sum, based on the difference in the offerors’ proposals, it was reasonable for DTRA to
conclude that Cubic’s international experience would aid international logistics during contract
performance and award Cubic, but not A-TS, this strength for Subfactor A – Management
Approach.

       DTRA Properly Evaluated A-TS’ Innovation And Relevancy Toolkit
        A-TS argues that DTRA improperly failed to assign it a strength for its Innovation and
Relevancy Toolkit in its Subfactor A – Management Approach. Pl. Mot. 30. In order to merit a
strength, the proposed item had to “exceed[] specified performance or capability requirements in
a way that [would] be advantageous to the Government during contract performance.” AR 239.
       A-TS’ Innovations and Relevancy Toolkit was a
       [***]
 AR 768. A-TS described how it would “plan, coordinate and track the preparations and phased
development/re-deployment of personnel deployed OCONUS in support of operations in high-
risk, hostile areas.” Id. Neither A-TS nor Cubic received a strength or a weakness for this
technical element.
        A-TS asserts that its toolkit deserved a strength “based on the toolkit’s breadth and the
ability of an online platform to quickly share information among the various parties.” Pl. Mot.
30. A-TS further argues that if all offerors were required to propose a way to track personnel
and inventories and A-TS’ toolkit merely met this requirement, then Cubic should have been
awarded a weakness for its inferior “paper course catalogue” and “annual, serialized inventory”
of property. Id. at 30-31 (citing AR 3070, 1660, 1667).
       Here, in the context of specialized training to counter chemical, biological, or nuclear
attacks or accidents, the Agency is in a far better position than the Court to assess how
advantageous A-TS’ Innovation and Relevancy Toolkit would be to the Government during
contract performance. This Court is not about to second-guess which offeror’s tracking system
was superior for the Agency’s purposes or engage in the exercise of rescoring technical

7
       AR 763 was a list of “team members, business size, role, anticipated areas of Statement
of Objectives responsibility, sample [Task Order] alignment, and value they bring to the DTRA
BPC program.” AR 762. AR 763 listed A-TS as the prime contractor.
                                                  17
proposals. See AshBritt, Inc., 87 Fed. Cl. at 367. Rather, the Court affords deference to agency
determinations on technical matters, in recognition of the special expertise of procurement
officials. AM Gen., LLC v. United States, 115 Fed. Cl. 653, 677 (2014) (citing E.W. Bliss Co. v.
United States, 77 F.3d 445, 449 (Fed. Cir. 1996); J.C.N. Constr., Inc. v. United States, 107 Fed.
Cl. 503, 510 (2012); Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2005)).
Technical ratings involve discretionary decisions of procurement officials that the Court will not
second guess. E.W. Bliss Co., 77 F.3d at 449.

       The Agency Did Not Treat A-TS Unfairly In Taking Corrective Action
        When examining agency corrective action, the Court considers whether the corrective
action was “reasonable under the circumstances.” See, e.g., Sierra Nev. Corp. v. United States,
107 Fed. Cl. 735, 750 (2012); Sheridan Corp. v. United States, 95 Fed. Cl. 141, 151 (2010);
ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 65 (2001). A-TS
argues that the weakness that it received for Sample Task Order 3 after the Agency’s corrective
action was both unreasonable and evidence of disparate treatment. Pl. Mot. 26. As a general
matter, A-TS contends that this weakness resulted from an illegal “second scrub for weaknesses
performed on [A-TS’] – and only [A-TS’] – proposal.” Id. at 27. Contrary to A-TS’ assertion,
the record shows that as part of the corrective action, the Agency reconsidered all offerors’
proposals. As the SSEB’s post-GAO brief indicates, all offerors were afforded an opportunity to
be reconsidered, and the Mission Capability Evaluation Team “researched issues, conducted re-
evaluation and made revisions to record as appropriate.” AR 3300. This is reflected in the post-
protest review for Cubic’s Subfactor B – Technical Approach, where the Agency removed
Cubic’s strength for travel costs that had been questioned by GAO. AR 3313.
       A-TS further argued that the Agency created a new weakness in taking corrective action,
while Cubic and the Government contend that the Agency “reworded” a weakness identified in
GAO’s outcome prediction. The original weakness assigned to A-TS’ proposal and risk as
compared to the reworded weakness and risk are as follows:

   Original Weakness and Impact/Risk                Reworded Weakness and Impact/Risk

  Offeror has one individual whose hours          Offeror provided an inconsistent staffing
 exceed 1 FTE (352 for CLIN 1; 1880 for            plan for Transition. The Senior Exercise
CLIN 2) without explanation (STO 3 – page           Planner is proposed to work 544 hours
                    59)                              during transition (page 194 para 1.1
                                                  Transition) however, in Exhibit 73 (page
                                                    167) the Senior Exercise Planner is not
                                                 identified and instead the hours are divided
                                                          between Program Analysts.

Government is uncertain why one individual      Because of the inconsistency in the proposal
       is exceeding 1 FTE hours                   the Government doesn’t understand the
                                                    transition staffing and [sic] proposed
                                                  transition tasks would be accomplished




                                               18
AR 3345-46. The original weakness questioned why a Senior Exercise Planner’s hours exceeded
1 FTE.8 The new weakness questioned the hours of this same Senior Exercise Planner and asked
why he was designated as working 544 hours during transition in one area of the proposal but not
in another. Both the old and reworded weakness concern the same person and the same hours,
and the amplified explanation of this weakness was reasonable, and not the result of a different
standard being applied to A-TS.
        A-TS further contends that in articulating this weakness, the Agency expressed a concern
about the hours of A-TS’ Senior Exercise Planner that had “no basis in fact,” and ignored
Cubic’s inconsistent transition staffing. Pl. Mot. 28-29. The Court concludes that the record
supports the Agency’s finding of an inconsistency and weakness in A-TS’ transition proposal.
On page 194 of A-TS’ proposal, under the heading “Project Management,” “1.1 Transition” was
described as follows:
       Transition is 60 days. Team A-TS leadership will initially coordinate with
       incumbent and customer, identify and develop processes/Project management
       plan, and then staff will continue to implement. TO Pjm (352 hours) + 5 Regional
       Leads + (1760 hours) + Senior Exercise Planner (544 Hours) + Logistician (272
       Hours) = (2928 Total Hours).
AR 946. However, A-TS’ Exhibit 73 on page 167 of A-TS’ technical proposal depicted “the
ramp-up of [Task Order] staff through the transition” but did not mention the Senior Exercise
Planner. Instead, 272 hours each were assigned to a Senior Program Analyst and a Program
Analyst. AR 919. The charts for A-TS’ Sample Task Order 3 transition staffing allocation and
cost proposal did not show the hours of the two program analysts described in its Exhibit 73. AR
947, 1198. Thus, the Agency reasonably concluded that there was an inconsistency regarding
who would perform these 544 hours of work during transition.
        A-TS also argues that it was treated unequally because it received this weakness for
inconsistent transition staffing, while Cubic did not receive any weaknesses for the alleged
inconsistencies in its transition plan. Pl. Reply 22-23. However, the parties are not similarly
situated in this regard, because A-TS’ proposal had an inconsistency, but Cubic’s did not. See
NCL Logistics Co., 109 Fed. Cl. at 627 (holding that offerors who are not similarly situated may
be treated differently). In A-TS’ proposal, an individual was listed as performing specified hours
in one part of the proposal, but these hours were inconsistently assigned to other employees in
another part of the proposal. In contrast, Plaintiff has not demonstrated that there was an
inconsistency in Cubic’s proposal due to its $0 cost for transition and its use of both indirect and
direct employees.

       DTRA Reasonably Assigned A-TS’ Proposal a Weakness for On-Site Staffing
        A-TS argues that DTRA irrationally awarded it a weakness for its on-site staffing. As
part of the Subfactor B – Technical Evaluation for Sample Task Order 2, DTRA gave A-TS a
weakness which stated “[t]he Offeror’s proposal increases the on-site presence for the On-Site
Operational Support and FBI Program Liaison positions (Task 3.1; Task 3.2).” AR 3392. The

8
      The only individual having more than 1 FTE hours on page 59 of Sample Task Order 3
was Senior Exercise Planner [***].
                                                19
associated impact/risk was stated to be “Government cannot accommodate additional on-site
presence other than what is indicated in the SOW.” Id. The related solicitation provisions
stated:
       6.1. The contractor shall provide one (1) FTE on-site for operational support to
       ICP J3BPPC office throughout the period of performance as required to assist in
       planning and execution of ICP program requirements as well as facilitate
       requirements coordination and communication with ICP partnering elements
       within DTRA; . . . .
       6.3.1. The contractor shall provide part-time, on-site support at the FBI
       International Operations Division (IOD) to plan, formulate, execute, monitor, and
       measure ICP program requirements and implementation support with the FBI as
       well as facilitate the required coordination and communication between J3BPPC
       and the FBI IOD.
AR 292-93.
        A-TS’ proposal stated that the Task Order project manager and the Senior Program
Analyst would support the ICP J3BPP office and that the Senior Program Analyst would serve as
the DOD/FBI Liaison Officer. AR 890-91. When describing its staffing, A-TS stated that on-site
operational support (Task 3.1) would be done by a Program Analyst for 2940 total hours and the
DOD/FBI Program Liaison Support (Task 3.2) required “one FTE for two different areas,”
consisting of “To Pjm (125 hours) + Senior Program Analyst (1870 hours) + 960 Program
Analyst – 2955 Total Hours.” AR 896.
        It was reasonable for DTRA to award A-TS a weakness for its proposed staffing levels
for these positions. While the solicitation specified one FTE for the ICP J3BPP on-site office
and part-time support for the on-site FBI liaison office, A-TS proposed hours well beyond one
FTE (1880 hours) for both roles, because ATS proposed that Task 3.1 would be done by a
Program Analyst for 2940 hours and Task 3.2 would be shared by three individuals for 2955
hours. A-TS’ current argument that individuals working in these roles could have been
employed off-site or could have worked on-site when the Government requested their presence
was not included in A-TS’ proposal. See Pl. Mot. 32-33.9


9
        In its reply, A-TS raises a new argument that Cubic should have received a similar
weakness because Cubic proposed [***] as its “DTRA on-site liaison in planning and execution
of ICP J3BPPC reqs” for 1915 hours, also more than 1880 hours. Pl. Reply 24. However, A-TS
misinterprets Cubic’s proposal. Cubic did not propose that [***] would only spend 1915 hours as
the on-site liaison. His full job description was:

       Serve as DTRA on-site liaison in planning and execution of ICP J3BPPC reqs.
       Facilitate communication with interagency affiliates.

       Maintain ICP Dashboard schedule, administrative records, document meetings.
       Support unforeseen short-notice tasking.


                                              20
       The Agency Reasonably Assigned A-TS a Weakness for Senior Program Analyst
       Responsibilities
       A-TS argues that it should not have been assigned a weakness for Subfactor B –
Technical Approach in Sample Task Order 2 for an alleged discrepancy between its Execution
Plan and Staffing Plan in explaining the responsibilities of the Senior Program Analyst. Pl. Mot.
33.
       This weakness stated:
       The Offeror’s Staffing Plan lists the Senior Program Analyst as solely providing
       full time on-site support at the FBI. Offeror’s Execution Plan assigns the Senior
       Program Analyst additional responsibilities not listed in the Staffing Plan. (3.2.3;
       3.2.9.1; 3.2.9.3).
AR 3392. The associated impact/risk was “Government is uncertain as to the scope of the Senior
Program Analyst’s responsibilities.” Id.
         A-TS asserts that there was no discrepancy. Pl. Mot. 33. However, as DTRA noted, the
record shows that A-TS inconsistently described the Senior Program Analyst’s role across
different parts of its technical proposal. A-TS’ Execution Plan at section 3.2.3 stated that “[t]he
Senior Program Analyst [would] lead the ICP portal management throughout the life cycle of
course content and engagement.” AR 877. The Senior Program Analyst was also described as
an “ICP Portal stakeholder.” Id. However, in ATS’ Execution Plan section 3.2.9.1, the Senior
Program Analyst and the TO Pjm were described as part of the on-site operational support to the
ICP J3BPP office. AR 890. Furthermore, in Execution Plan section 3.2.9.3, the Senior Program
Analyst was described as serving as the “DOD/FBI ICP program Liaison Officer,” ensuring that
“all ICP events are coordinated and documents are properly staffed through both the J3BPP and
the FBI IOD.” AR 891. As part of this role, the Senior Program Analyst would “help the FBI
IOD plan, formulate, execute, monitor and measure the ICP program requirements as well as
facilitate and coordinate between the DOD, DTRA, and FBI.” Id.
        A-TS’ Exhibit 68 to its proposal, which broke down job roles by hours, assigned the
Senior Program Analyst 352 hours for transition, 10 hours for ICP curriculum development and
revision, and 1870 for the DOD/FBI Program liaison support. AR 894. A-TS’ Staffing Plan
referred back to this Exhibit but described the scope of the Senior Program Analyst’s work as
       Provide onsite support to the FBI International Operations Division (IOD) to plan,
       formulate, execute, monitor, and ensure ICP requirements and implementation
       support. Maintain close liaison with the FBI WMD Directorate and in country
       legal attaches. Provide curriculum review, development, and oversight. Facilitate
       and coordinate communication between J3BPPC and FBI IOD.
AR 906. This Staffing Plan thus did not mention the Senior Program Analyst’s role in leading
ICP portal management or his role in the on-site J3BPPC office.



AR 1813.
                                                21
         The Agency’s articulation of this weakness contained an error -- the Staffing Plan did not
list the Senior Program Analyst as “solely” providing full time on-site support to the FBI, but
referenced Exhibit 68, which showed that the Senior Program Analyst would spend 10 hours on
ICP curriculum development and revision. See AR 894, 906. However, despite this inaccuracy,
the weakness correctly identified that the Execution Plan listed additional responsibilities for this
position not included in the Staffing Plan. DTRA’s error in not acknowledging the 10 hours for
ICP curriculum development and revision does not invalidate its identification of the differing
responsibilities A-TS gave to the Senior Program Analyst across different areas of its proposal.
The different Execution Plan sections described a broader scope of the role of the Senior
Program Analyst than was evident from the Staffing Plan, which was confined to describing the
work of the Senior Program Analyst while performing as the DOD/FBI liaison.
       In any event, A-TS was not prejudiced by its receipt of this weakness for Subfactor B –
Technical Approach Sample Task Order 2. A-TS received an “outstanding” rating for Subfactor
B – Technical Approach, and removing this weakness could not have improved its rating. This
weakness was not mentioned in either the pre- or post-GAO protest SSA decision and thus did
not appear to tip the balance in favor of Cubic. See AR 2751, 3294.

       DTRA’s Best Value Decision Was Reasonable
       Procurement officials have substantial discretion to determine which proposal represents
the best value for the government. E.W. Bliss Co., 77 F.3d at 449. Here, the SSA acted well
within his discretion to decide that while A-TS’ and Cubic’s proposals were roughly equal,
Cubic’s proposal provided certain desired advantages, and Cubic’s [***] lower cost made
Cubic’s proposal a better value to the Government.

                                                Conclusion
        The Court DENIES Plaintiff’s motion for judgment on the AR and motion for injunctive
relief. The Court GRANTS Defendant’s and Intervenor’s cross-motions for judgment on the
AR. The Court directs the Clerk to enter judgment accordingly.


                                              s/Mary Ellen Coster Williams
                                              MARY ELLEN COSTER WILLIAMS
                                              Judge




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