              In the United States Court of Federal Claims
                                       BID PROTEST
                                         No. 19-203C
                 (Filed Under Seal: April 12, 2019 | Reissued: April 16, 2019) ∗

                                                )     Keywords: Bid Protest; IDIQ Contract;
    TELE-CONSULTANTS, INC.,                     )     U.S. Army; CAGE Code; Meaningful
                                                )     Discussions
                       Plaintiff,               )
                                                )
         v.                                     )
                                                )
    THE UNITED STATES OF AMERICA,               )
                                                )
                       Defendant.               )
                                                )
                                                )


James S. DelSordo, Argus Legal, PLLC, Manassas, VA, for Plaintiff.

Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, for Defendant, with whom were Deborah A. Bynum,
Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph H. Hunt, Assistant Attorney
General. MAJ Wayne T. Branom III, Trial Attorney, U.S. Army Legal Services Agency, Contract
& Fiscal Law Division, Ft. Belvoir, VA, Of Counsel.

                                    OPINION AND ORDER

KAPLAN, Judge.

       Plaintiff Tele-Consultants, Inc. (“TCI”) brings this post-award bid protest to challenge a
decision by the United States Army Contracting Command – Aberdeen Proving Ground (“the
Army” or “the agency”) not to award it one of the agency’s Responsive Strategic Sourcing for
Services (“RS3”) IDIQ contracts. TCI contends (1) that the Army misconstrued its own



∗
  This opinion was previously issued under seal on April 12, 2019. The parties were given the
opportunity to propose redactions on or before April 22, 2019. Because the parties have notified
the Court that they do not have any proposed redactions (ECF No. 21), the Court
 reissues its decision without redactions. In this public version, the Court made a stylistic
 alteration on page 11, changing the numbering of the “Meaningful Discussions” title from “IV”
 to “B.” The Court also added language at the end of the opinion directing the Clerk to enter
 judgment and noting that each side would bear its own costs.
evaluation criteria when it determined that TCI was not eligible for award; and (2) that the
discussions the Army conducted with TCI regarding its proposal were legally inadequate.

       For the reasons that follow, the Court concludes that TCI’s arguments lack merit. The
Army properly interpreted and applied its evaluation criteria, and the discussions it held with
TCI regarding its compliance with those criteria were consistent with its legal obligations.
Accordingly, TCI’s motion for judgment on the administrative record is DENIED and the
government’s cross-motion is GRANTED.

                                        BACKGROUND

I.     Overview of the Solicitation

        The Army issued Solicitation No. W15P7T-15-R-0008 (“the Solicitation”) on March 25,
2015. Administrative Record (“AR”) Tab 11 at 53. The Solicitation anticipated the award of
multiple IDIQ contracts to provide agency “customers, other Program Executive Offices[,] other
Department of Defense [] agencies, and other federal agencies with knowledge based support
services for requirements with Command, Control, Communications, Computers, Intelligence,
Surveillance, and Reconnaissance (C4ISR) related needs.” AR Tab 31 at 1386. The services to
be supplied involved engineering; research, development, test, and evaluation; logistics;
acquisition and strategic planning; and education and training. Id. at 1386–87.

        The Solicitation stated that the basis for award would be “a combination of source
selection approaches in order to obtain best value in accordance with FAR 15.101.” Id. at 1498.
Specifically, the Army would award contracts to “the offerors whose corporate experience
proposals are rated acceptable and who represent the best value after a tradeoff analysis in
accordance with FAR 15.101-1 of the past performance proposals and total evaluated costs.” Id.

        Under the Solicitation, offerors were required to demonstrate both their corporate
experience and relevant past performance by providing three examples of contracts or task orders
for which they performed the types of services required in the performance work statement. Id. at
1485–86. Offerors were instructed not to propose corporate experience examples that were
performed by subcontractors or teammates and were warned that, if they did so, they would be
ineligible for award. Id. at 1486.

        The Solicitation provided that contracts could be awarded in two phases. During Phase 1,
only offerors whose corporate experience was rated acceptable and whose past performance
received a confidence rating of “Satisfactory Confidence, Substantial Confidence, or Unknown
Confidence (Neutral),” would be eligible for award. Id. at 1499. If the Army was unable to award
a sufficient number of contracts during Phase 1, “proposals that d[id] not meet the criteria for
award in Phase 1 [could] be considered for award in Phase 2.” Id. As relevant here, the
Solicitation provided that during Phase 2 the agency could consider proposal revisions that were
based on an “unacceptable corporate experience rating in Phase 1.” Id.

        No new or amended solicitation was to be issued during Phase 2. Id. Instead, proposal
revisions would be accepted as the result of discussions held in accordance with FAR 15.306(d).
Id.


                                                 2
II.    The Language in Dispute

        On April 14, 2015, the Army issued an amendment to the Solicitation which included the
language whose interpretation is at issue in this case. AR Tab 21.7 at 553, 572. That language
was added in response to questions posed by prospective offerors regarding the interpretation
and application of Solicitation sections L.15.2 (“Corporate Experience”) and L.15.3 (“Past
Performance”). See AR Tab 21.8 at 593–94. The language imposes certain obligations on
offerors whose “Commercial and Government Entity” (“CAGE”) codes differ from the CAGE
codes of the entities that performed the contracts or task orders used to establish their corporate
experience and relevant past performance. 1

        Under section L.15.1 of the Solicitation, offerors were required to submit a cover letter
with their proposals that included—among other information—the offeror’s CAGE code. AR
Tab 31 at 1485; AR Tab 21.3 at 529 (conformed Solicitation dated April 30, 2015); see also FAR
52.204-16(b) (providing that an offeror “shall enter its CAGE code in its offer with its name and
address or otherwise include it prominently in its proposal”). Sections L.15.2.1(a) and
L.15.3.1(a) required offerors to include CAGE codes for each of the examples of contracts or
task orders that they supplied to demonstrate their corporate experience and relevant past
performance. AR Tab 21.3 at 530–31; AR Tab 31 at 1485–86.

       Several of the questions posed by prospective offerors concerned whether the Army
would credit an offeror for examples of corporate experience and relevant past performance that
had been performed under a different CAGE code from that supplied by the offeror in its
proposal. For example, one offeror asked whether the Army would “accept past performance and
corporate experience examples from a single legal entity offeror with multiple CAGE codes,
where the orders for those examples were issued to the legal entity and tied to multiple location-
based CAGE codes[.]” AR Tab 21.8 at 593. Another asked the Army to clarify whether its intent
was “that all past performance must come from the same CAGE code or just that the past
performance must come from the same prime offeror[.]” Id. at 594.



1
  A CAGE code is a five-digit ID number assigned by the Defense Logistics Agency. See 48
C.F.R. § 4.1801(1) (defining a CAGE code as an “identifier assigned to entities located in the
United States or its outlying areas by the Defense Logistics Agency (DLA) Commercial and
Government Entity (CAGE) Branch to identify a commercial or government entity”). “CAGE
codes are assigned to discrete business entities for a variety of purposes (e.g., facility clearances,
pre-award surveys, and tracking the ownership of technical data) to dispositively establish the
identity of a legal entity for contractual purposes.” BDO USA, LLP, B-416504, 2018 CPD ¶ 322
(Comp. Gen. Sept. 14, 2018). As the government points out, “[a] company may have a similar
name and address to another unrelated company, or numerous locations, divisions, parent
companies, or subsidiaries. A CAGE code identifies exactly which of these entities, at which
address, is legally bound to perform the contract.” Def.’s Opp’n to Pl.’s Mot. for J. upon the
Admin. R. & Cross-Mot. for J. upon the Admin. R. (“Def.’s MJAR”) at 2, ECF No. 15.




                                                  3
        The Army responded to these questions by referring prospective offerors to “Solicitation
AMD 1,” which was an amendment to the Solicitation issued on April 14, 2015. Id.; see also AR
Tab 21.7 at 553–87. Among other things, Amendment 1 added the language underlined below to
section L.15.2.4:

       Offeror shall NOT propose corporate experience examples of subcontractors or
       teammates. If an offeror proposes corporate experience examples of subcontractors
       or teammates, the offeror shall be ineligible for award. If an offeror proposes an
       example under a different CAGE from the offeror, the offeror shall describe the
       relationship within the legal entity of the offeror and include an affirmative
       statement that the example was performed by the same legal entity as the offeror
       and is not the experience of a subcontractor or teammate.

AR Tab 21.7 at 572 (emphasis supplied). The amendment also made parallel changes to section
L.15.3.6, governing the examples of past performance supplied. See id. at 573.

III.   Discussions Are Held After TCI Is Found Ineligible for Award During Phase 1

        TCI submitted its proposal responding to the Solicitation on May 6, 2015. AR Tab 21.26
at 774. In its cover letter, TCI listed its CAGE code as 588X2 and its DUNS number as
170883883. Id. 2 TCI submitted three examples of task orders from a single contract to establish
both its corporate experience and relevant past performance. TCI did not, however, comply with
the Solicitation’s requirement that it include a CAGE code for each of the examples of corporate
experience and relevant past performance upon which it relied.

       On May 16, 2017, the contracting officer sent TCI a letter informing it of its ineligibility
for award under Phase 1. See generally AR Tab 21.15. In the letter, the contracting officer
advised TCI that the Army would be proceeding to Phase 2, and that it would be holding
discussions in connection with Phase 2. Id. at 616. The contracting officer included several
evaluation notices in the letter. Most relevant to the present protest, the contracting officer
advised TCI that its proposal was not compliant with the Solicitation’s requirements because 1) it
“did not provide the CAGE, DUNS, and NAICS for Examples 1, 2, and 3” of its corporate
experience examples; and 2) it did not supply CAGE codes, government contracting activity,
contracting officer name, telephone number, or email address for any of its past performance
examples. Id. at 618–19. 3


2
  A Data Universal Numbering System (“DUNS”) number is a nine-digit number provided by the
company Dun and Bradstreet assigned “for each physical location of a business.” Fed. Serv.
Desk, What is a DUNS and how do I obtain one?, https://www.fsd.gov/fsd-
gov/answer.do?sysparm_kbid=4dd0e67e6f585100211956532e3ee43a&sysparm_search=DUNS
(last updated Apr. 27, 2018). The pairing of a CAGE code and DUNS number is unique.
3
 The evaluation notices identified a number of other similar errors of omission in TCI’s
proposal, including that 1) it “did not submit a signed copy of the SF 30 form for Solicitation
Amendment 6 prior to the due date and time specified in the Amendment”; 2) it failed to provide
end dates for the periods of performance for Examples 1 and 2 regarding its corporate experience

                                                4
       The contracting officer instructed TCI that if it wished to be considered for award in
Phase 2, it should “carefully review” the discussion questions and “submit a revised proposal
addressing the items identified by the Government.” Id. at 616. Revised proposals were to be
evaluated “in accordance with the terms and conditions of the solicitation, including all
amendments.” Id. at 617.

       The contracting officer warned that “[p]roposals with an omission or unclear or uncertain
proposals may not be considered for award.” Id. She also advised that “[t]he Government
intend[ed] to make award without discussions after receipt of revised proposals” but that it
“reserve[d] the right to conduct clarifications in accordance with FAR 15.306(a) or further
discussions in accordance with FAR 15.306(d).” Id.

IV.    TCI’s Revised Proposal Is Found Unacceptable

        TCI timely submitted a revised proposal on June 14, 2017. See AR Tab 21.30 at 870. It is
undisputed that the proposal contained all of the information that had been identified as missing
in the evaluation notices. In particular, in its revised proposal, TCI supplied the CAGE codes for
the examples of corporate experience and relevant past performance upon which it relied. See
AR Tab 21.31 at 900, 903, 906; AR Tab 21.32 at 909, 912, 915.

        Nonetheless, on October 18, 2018, TCI was notified that it would not receive an award
under Phase 2 of the Solicitation on the grounds that its proposal was “Non-Compliant with the
requirements of the solicitation and received an Unacceptable rating in the Corporate Experience
factor.” AR Tab 21.43 at 1304–05. TCI requested a debriefing on October 19, 2018, which was
held on October 24, 2018. AR Tab 21.41 at 1277; AR Tab 21.42 at 1302.

        During the debriefing, the contracting officer explained why the Army had found TCI’s
corporate experience proposal unacceptable. She noted that “[i]n the Cover Letter, the offeror
provided the CAGE Code ‘588X2’ [whereas] [f]or Example 2, the Offeror provided the CAGE
code ‘39313’ and for Example 3, provided ‘5RX70.’” AR Tab 21.41 at 1291. Notwithstanding
these differences, the contracting officer observed, TCI “did not describe the relationship within
the legal entity of the offeror for both examples, and did not include an affirmative statement that
both examples were performed by the same legal entity as the offeror and [was] not the
experience of a subcontractor or teammate as required.” Id. Likewise, for the past performance
examples, TCI provided CAGE code 39313 for Example 2 and CAGE code 5RX70 for Example
3, which did not match the CAGE code in its cover letter or “the CAGE code on the contract in
PPIRS.” Id. at 1295. Again, TCI did not “explain the relationship between the two CAGE codes
as required.” Id.



proposal; 3) it did not address the required items listed in L.15.3.2.a–h of the Solicitation (which
included a narrative of any corrective actions taken, any contracts terminated for default, etc.);
and 4) it submitted data for a labor category in its cost proposal that did not include a required
job description. AR Tab 21.15 at 618–19.




                                                 5
V.     GAO Protest

       TCI filed a protest with the Government Accountability Office (“GAO”) on October 29,
2018. AR Tab 1 at 1. It contended that it was “fully compliant with the stated terms of the RFP
and should have been offered an award under the RS3 program.” Id. at 1–2. TCI’s principal
argument was that the Army misinterpreted the requirements set forth in Amendment 1. Id. at 11.
TCI explained to GAO that it had operated under three different codes because of changes in the
address of its corporate offices. Id. at 13–14. It argued that there was “no requirement for
providing an explanation if the CAGE code is that of the offeror, only ‘If an offeror proposes an
example under a different CAGE from the offeror.’” Id. at 11 (citing sections L.15.2.4 and
L.15.3.6 of the conformed Solicitation). It also argued that the discussions that occurred were not
meaningful because the Army’s evaluation notices did not inform TCI that it was required to
explain the different CAGE codes in its proposal. Id. at 16–17.

        GAO denied TCI’s protest on January 29, 2019. AR Tab 25 at 1356. It found “nothing
unreasonable with the agency’s decision to reject TCI’s proposal based on the protestor’s failure
to comply with the RFP’s instructions for the submission of its corporate experience
information.” Id. at 1359. Although TCI explained “why three different CAGE codes were
included in its revised proposal,” GAO observed, “the RFP’s instructions required this
explanation to be included in TCI’s offer and not in a subsequent protest.” Id. at 1360.
Furthermore, GAO agreed with the government that “an agency is not required to reopen
discussions to afford an offeror an additional opportunity to revise its proposal where a weakness
or deficiency is first introduced in the firm’s revised proposal.” Id. at 1362. Ultimately, GAO
found “no basis to question the agency’s decision not to reopen discussions to address
deficiencies that were introduced by TCI in its revised proposal.” Id.

VI.    The Present Action

        TCI filed the present bid protest along with a motion for a preliminary and permanent
injunction on February 5, 2019. ECF Nos. 1, 4. In its complaint, TCI presses essentially the same
challenges as it posed before GAO. It contends that the Army’s interpretation of the
Solicitation’s requirements is incorrect and that the discussions the agency held with TCI were
not meaningful.

       The Court held a telephonic status conference on February 7, 2019, after which it issued
an expedited briefing schedule and advised the parties that it would merge consideration of TCI’s
motion for a preliminary and permanent injunction with its consideration of the motions for
judgment on the administrative record. ECF No. 9. The Court also issued a protective order that
same day. ECF No. 10.

         The government filed the administrative record on February 15, 2019. ECF No. 15. TCI
filed its MJAR on February 27, 2019. See generally Pl.’s Mem. in Supp. of Mot. for J. on the
Admin. R. (“Pl.’s Mem.”), ECF No. 13-1. The government filed its opposition to TCI’s MJAR
and a cross-motion for judgment on the administrative record on March 8, 2019. See generally
Def.’s MJAR. The cross-motions have been fully briefed. ECF Nos. 17–18. Oral argument was
held on April 9, 2019.



                                                6
                                           DISCUSSION

I.     Bid Protest Jurisdiction

        The Court of Federal Claims has jurisdiction over bid protests in accordance with the
Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolution Act of
1996 § 12 (codified at 28 U.S.C. § 1491(b)). Specifically, the Court has the authority “to render
judgment on an action by an interested party objecting to a solicitation by a Federal agency for
bids or proposals for a proposed contract or 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.” 28 U.S.C. § 1491(b)(1); see also Sys. Application & Techs., Inc. v. United States,
691 F.3d 1374, 1380–81 (Fed. Cir. 2012) (observing that § 1491(b)(1) “grants jurisdiction over
objections to a solicitation, objections to a proposed award, objections to an award, and
objections related to a statutory or regulatory violation so long as these objections are in
connection with a procurement or proposed procurement”).

         A party invoking this Court’s bid protest jurisdiction “bears the burden of establishing
[the] elements [of standing].” Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d
1366, 1369 (Fed. Cir. 2002) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992))
(alterations in original). To possess standing to bring a bid protest, a plaintiff must be an
“interested party”—i.e., an actual or prospective bidder (or offeror) who possesses a direct
economic interest in the procurement. Sys. Application & Techs., Inc., 691 F.3d at 1382 (citing
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009)); see also Orion
Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). An actual or prospective
offeror has a direct economic interest if it suffered a competitive injury or prejudice as a result of
an alleged error in the procurement process. Myers, 275 F.3d at 1370 (holding that “prejudice (or
injury) is a necessary element of standing”); see also Weeks Marine, Inc., 575 F.3d at 1359.

        In post-award protests, like this one, a plaintiff may demonstrate competitive injury or
prejudice by showing that it would have had a “substantial chance” of winning the award “but
for the alleged error in the procurement process.” Weeks Marine, Inc., 575 F.3d at 1359 (quoting
Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)). In
making the standing determination, the Court assumes well-pled allegations of error in the
complaint to be true. Square One Armoring Serv., Inc. v. United States, 123 Fed. Cl. 309, 323
(2015) (quoting Digitalis Educ. Sols., Inc. v. United States, 97 Fed. Cl. 89, 94 (2011), aff’d, 664
F.3d 1380 (Fed. Cir. 2012)); see also Salmon Spawning & Recovery All. v. U.S. Customs &
Border Prot., 550 F.3d 1121, 1131 & n.9 (Fed. Cir. 2008) (citing Lujan, 504 U.S. at 561); Linc
Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 695–96 (2010) (noting that the showing of
prejudice as an element of standing “turns entirely on the impact that the alleged procurement
errors had on a plaintiff’s prospects for award, taking the allegations as true,” and distinguishing
“allegational prejudice” required to establish standing from the “prejudicial error” required to
prevail on the merits).

        TCI is an actual offeror challenging the Army’s interpretation of the Solicitation and the
determination that TCI was ineligible for award under the Solicitation’s requirements. This falls
within the Court’s “jurisdiction over objections to the procurement process.” Sys. Application &
Techs., Inc., 691 F.3d at 1381. Taking the allegations of error to be true—as it must to determine

                                                  7
standing—the Court finds that, but for the Army’s determination of ineligibility, there is a
substantial chance that TCI would have been awarded an IDIQ contract. Accordingly, TCI is an
interested party and the Court has subject-matter jurisdiction over its claim.

II.    Standard of Review

        Parties may move for judgment on the administrative record pursuant to Rule 52.1 of the
Rules of the Court of Federal Claims (“RCFC”). Pursuant to RCFC 52.1, the Court reviews an
agency’s procurement decision based on the administrative record. Bannum, Inc. v. United
States, 404 F.3d 1346, 1353–54 (Fed. Cir. 2005). The Court makes “factual findings under
RCFC [52.1] from the record evidence as if it were conducting a trial on the record.” Id. at 1357.
Thus, “resolution of a motion respecting the administrative record is akin to an expedited trial on
the paper record, and the Court must make fact findings where necessary.” Baird v. United
States, 77 Fed. Cl. 114, 116 (2007). The Court’s inquiry is “whether, given all the disputed and
undisputed facts, a party has met its burden of proof based on the evidence in the record.” A&D
Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment
proceeding, genuine issues of material fact will not foreclose judgment on the administrative
record. Bannum, Inc., 404 F.3d at 1356.

       The Court reviews challenges to procurement decisions under the same standards used to
evaluate agency actions under the Administrative Procedure Act, 5 U.S.C. § 706. See 28 U.S.C.
§ 1491(b)(4) (stating that “[i]n any action under this subsection, the courts shall review the
agency’s decision pursuant to the standards set forth in section 706 of title 5”). Thus, to
successfully challenge an agency’s procurement decision, a plaintiff must show that the agency’s
decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc., 404 F.3d at 1351.

        This “highly deferential” standard of review “requires a reviewing court to sustain an
agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data
Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). As a result, where an
agency’s action has a reasonable basis, the Court cannot substitute its judgment for that of the
agency. See Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (holding that
as long as there is “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”) (quoting M.
Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)). The Court’s function is
therefore limited to “determin[ing] whether ‘the contracting agency provided a coherent and
reasonable explanation of its exercise of discretion.’” Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc.
v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)); see also Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (noting that a court should review
agency action to determine if the agency has “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action”).

        In short, a disappointed offeror “bears a heavy burden” in attempting to show that a
procuring agency’s decision lacked a rational basis. Impresa, 238 F.3d at 1338. For the agency to
prevail, it need only articulate “a rational connection between the facts found and the choice

                                                 8
made,” and courts will “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quotations and citations
omitted).

III.      Merits

       A. Interpretation of the Solicitation

         As explained above, the Army found TCI ineligible for an award during Phase 2 because
it failed to achieve an acceptable rating on the corporate experience factor. The agency rated
TCI’s corporate experience proposal unacceptable because TCI failed to include an affirmative
statement that it was the same legal entity as the party that performed the task orders that it
submitted as examples to establish its corporate experience. The Army’s determination was
based on the language of section L.15.2.4 of the Solicitation stating that “[i]f an offeror proposes
an example under a different CAGE from the offeror, the offeror shall describe the relationship
within the legal entity of the offeror and include an affirmative statement that the example was
performed by the same legal entity as the offeror and is not the experience of a subcontractor or
teammate.” AR Tab 21.7 at 572.

         TCI contends that the Army misinterpreted this language. According to TCI, its examples
were not proposed under a “different CAGE from the offeror,” because TCI is the offeror and
“all CAGE codes [cited in the examples] were from TCI.” Pl.’s Mem. at 19. It observes that TCI
holds multiple CAGE codes because it has moved its corporate offices several times. Id. at 21. 4
It is for that reason, TCI explains, that the CAGE code it used to identify itself in its proposal is
not the same as the CAGE codes associated with the examples. Id.

        When interpreting a solicitation, the Court applies the same principles that apply to the
interpretation of contracts. Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1353 n.4
(Fed. Cir. 2004). Thus, the Court “begin[s] with the plain language of the document.” Id. at 1353
(citing Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (en banc)).
The Court “must consider the solicitation as a whole, interpreting it in a manner that harmonizes
and gives reasonable meaning to all of its provisions.” Id. “If the provisions of the solicitation are
clear and unambiguous, they must be given their plain and ordinary meaning” and the Court
“may not resort to extrinsic evidence to interpret them.” Id.

        The burden falls on TCI to demonstrate its compliance with the terms of the Solicitation.
Manus Med., LLC v. United States, 115 Fed. Cl. 187, 193 (2014) (“[O]fferors have an
affirmative duty to submit a proposal that conforms to the explicit requirements outlined in the
solicitation.”). In this case, it is undisputed that the CAGE code TCI supplied with its proposal
was different from the CAGE codes it supplied for two of the task orders it used to establish its

4
 CAGE 588X2 (the code used in the cover letter and in Example 1) is associated with TCI’s
office in Norfolk, Virginia. Pl.’s Mem. at 21. CAGE 39313 (the code used in Example 2) is
affiliated with TCI’s prior corporate office location in Alpharetta, Georgia. Id. And CAGE
5RX70 (the code used in Example 3) is affiliated with its prior corporate office location in
Fairfax, Virginia. Id.


                                                  9
corporate experience. Under the plain language of section L.15.2.4, TCI was obligated to affirm
that the examples were performed by the same entity that was seeking the contract award
because the two examples were proposed “under a different CAGE from the offeror.”

        TCI’s alternative interpretation of the language of section L.15.2.4, on the other hand, is a
convoluted one. It points out that all of the CAGE codes in fact belonged to the same legal entity
and argues that “[t]here is no requirement for providing an explanation if the CAGE code is that
of the offeror, only ‘[i]f an offeror proposes an example under a different CAGE from the
offeror.’” Pl.’s Mem. at 19 (quoting conformed Solicitation section L.15.2.4 at AR Tab 21.16 at
736).

         But, TCI’s proposed distillation of the Solicitation’s requirements does not advance its
case. Even if the Court were to apply TCI’s reformulated language, it would still conclude that
the CAGE code that an offeror supplies with its proposal is the CAGE code “of the offeror.” The
CAGE code “of the offeror” here was 588X2. See AR Tab 21.26 at 774 (original proposal cover
letter); AR Tab 21.30 at 870 (amended proposal cover letter). The CAGE codes supplied with
two of the examples of corporate experience, on the other hand, were 33913 and 5RX70. AR Tab
21.31 at 903, 906. Each example was thus proposed under a “different CAGE code from” the
CAGE code of the offeror. And given the importance of assuring that an award is not made to an
offeror on the basis of experience it does not possess, it was not unreasonable for the Solicitation
to require TCI to come forward and explicitly affirm that—notwithstanding that their CAGE
codes were different—it was the same legal entity that had performed the task orders cited in its
proposal.

        TCI’s interpretation of the relevant language has the incongruous effect of imposing this
affirmation requirement only where an offeror supplies examples that were performed by other
legal entities. But offerors were not permitted to rely upon the corporate experience or past
performance of other legal entities; doing so would render them ineligible for award. And an
offeror that supplied examples that were performed by other legal entities could not—by
definition—provide an “affirmative statement that the example was performed by the same legal
entity as the offeror.”

        TCI notes that it is not unusual for a single legal entity to have multiple CAGE codes.
Pl.’s Reply in Supp. of Mot. for J. on the Admin. R. at 14, ECF No. 17. That is true, but it does
not help TCI because the fact that a single legal entity may have multiple CAGE codes is
actually what led the agency to add the language of section L.15.2.4 that is at issue in this
protest. Thus, the Army added the operative language to the Solicitation in response to questions
such as, for example, whether the Army would “accept past performance and corporate
experience examples from a single legal entity offeror with multiple CAGE codes, where the
orders for those examples were issued to the legal entity and tied to multiple location-based
CAGE codes[.]” AR Tab 21.8 at 593. The answer the Army provided in section L.15.2.4 as
amended was “yes” so long as the offeror affirmed that—despite the multiple CAGE codes—the
legal entity that performed the examples was the same one seeking the contract award.

       The Court is also not persuaded by TCI’s argument that the Army was aware (or should
have been aware) that the examples provided in TCI’s proposal represented performance by the
same legal entity that was seeking the contract award. The CAGE code submitted for Example 3

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(5RX70) was different from both the CAGE code TCI provided in its cover letter (588X2) and
the CAGE code for the contract contained in PPIRS (also 588X2). In addition, CAGE 5RX70
was not listed at all in the System for Award Management. AR Tab 21.38 at 1061. Further, TCI’s
initial proposal used DUNS number 170883883 in its cover letter and for all three past
performance examples, but TCI’s revised past performance proposal included a different DUNS
number for both its second and third examples. Compare AR Tab 21.28 at 812, 815, with AR
Tab 21.32 at 912, 915.

         Moreover, and in any event, it is irrelevant whether the agency could have ultimately
ascertained on its own that the examples TCI submitted were performed by the same entity that
was seeking the contract award. The Solicitation placed the onus on offerors to provide an
explanation and make an affirmative statement to that effect. Further, the Solicitation warned
that “[t]he Government does not assume the duty to search for data to cure problems found in
proposals.” AR Tab 21.3 at 544. 5

        In short, the Army’s decision to rate TCI’s proposal unacceptable as to its corporate
experience was consistent with the plain language of sections L.15.2.4 of the Solicitation. TCI’s
interpretation of the language, on the other hand, is unreasonable.

    B. Meaningful Discussions

        As noted, TCI challenges the legal sufficiency of the discussions the Army held in
connection with Phase 2 of the procurement. TCI observes that “[w]hen an agency finds that a
weakness or risk associated with a given aspect of an offeror’s proposal may jeopardize
successful performance of a contract, it represents a significant weakness that must be addressed
during discussions.” Pl.’s Mem. at 25 (citing Caddell Constr. Co. v. United States, 125 Fed. Cl.
30, 46 (2016); Dynacs Eng’g Co., Inc. v. United States, 48 Fed. Cl. 124, 133–34 (2000)). The
Army violated this obligation, TCI argues, because it did not advise TCI of the necessity to
explain its relationship to the entities that performed the examples in light of the difference
between their CAGE codes and the CAGE code TCI used to identify itself in connection with the
procurement.




5
  In its briefs, TCI focuses on the fact that section M.3.6 of the Solicitation—which originally
stated in pertinent part that “[t]he Government will accept no more than one (1) proposal from
each offeror (one proposal per CAGE code)”—was modified by Amendment 1, striking the
parenthetical “(one proposal per CAGE code).” Pl.’s Mem. at 15–16. As TCI correctly observes,
the change to section M.3.6 “was clearly in response to several questions from offerors
suggesting under the original provision that they could submit multiple offers under separate
CAGE codes representing the same entity.” Id. at 16. The result of the amendment was that a
single offeror could submit only one proposal, even if it had multiple CAGE codes. But TCI has
not explained to the Court’s satisfaction what relevance this change has to the interpretation of
the provision at issue in this case—section L.15.2.4—which concerns how a single offeror that
holds multiple CAGE codes may establish its corporate experience.


                                               11
        This contention lacks merit. The Army could not have asked TCI to clarify the
relationship between the CAGE codes in TCI’s cover letter and those in the examples because
the examples in TCI’s Phase 1 proposal did not contain any CAGE codes. See AR Tab 21.27 at
800, 803, 806 (corporate experience proposal dated May 6, 2015); AR Tab 21.28 at 809, 812,
815 (past performance proposal dated May 6, 2015); AR Tab 21.15 at 618 (Evaluation Notices).
It therefore failed to comply with sections L.15.2.1(a) and L.15.3.1(a) of the Solicitation. It was
not until TCI added the CAGE codes that this particular deficiency, which was based on a failure
to comply with section L.15.2.4, surfaced. And the Army had no reason to anticipate that TCI,
once having brought itself into compliance with sections L.15.2.1(a) and L15.3.1(a), would then
submit a proposal that was not compliant with L.15.2.4 by neglecting to explain the relationship
and affirm that all of the CAGE codes were in fact assigned to the same legal entity.

        Further, the Army was under no obligation to hold follow-on discussions after TCI
submitted its revised Phase 2 proposal. It is well established that “the decision whether to reopen
discussions is largely a matter left to the agency’s discretion.” Lyon Shipyard, Inc. v. United
States, 113 Fed. Cl. 347, 357 (2013). “[A]n agency is not required to reopen discussions to afford
an offeror an additional opportunity to revise its proposal where a weakness or deficiency is first
introduced in the firm’s revised proposal.” Ellwood Nat’l Forge Co., B-416582, 2018 CPD ¶ 362
(Comp. Gen. Oct. 22, 2018); see also Iron Bow Techs., LLC v. United States, 133 Fed. Cl. 764,
780 (2017). Indeed, the contracting officer cautioned that “[r]evised proposals will be evaluated
in accordance with the terms and conditions of the solicitation, including all amendments” and
that the Army intended “to make award without discussions after receipt of revised proposals,
and d[id] not intend to obtain further revisions.” AR Tab 21.15 at 617. Thus, there is no merit to
TCI’s contention that the Army was required to reopen discussions after TCI’s revised proposal
introduced a new issue of noncompliance with the Solicitation’s requirements.

                                         CONCLUSION

     For the foregoing reasons, TCI’s motion for judgment on the administrative record is
DENIED and the government’s cross-motion for judgment on the administrative record is
GRANTED. Accordingly, TCI’s motion for a preliminary and permanent injunction is also
DENIED.

       The Clerk is directed to enter judgment accordingly. Each party shall bear its own costs.

       IT IS SO ORDERED.

                                                     s/ Elaine D. Kaplan
                                                     ELAINE D. KAPLAN
                                                     Judge




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