      In the United States Court of Federal Claims
                                    No. 19-369C
                           (Filed under seal July 31, 2019)
                            (Reissued August 13, 2019) †

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
TECHNATOMY CORP.,                 *           Post-award bid protest; corrective
                                  *           action following GAO protest; no
                 Plaintiff,       *           waiver under Blue & Gold; price
                                  *           reasonableness; best-value tradeoff;
      v.                          *           neutral past performance.
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant,       *
                                  *
      and                         *
                                  *
SOLERS, INC., NORTHROP            *
GRUMMAN SYSTEMS CORP. and *
BOOZ ALLEN HAMILTON, INC., *
                                  *
           Defendant–Intervenors. *
                                  *
* * * * * * * * * * * * * * * * * *

       Julie M. Nichols, Roeder & Cochran, PLLC, with whom was James S.
Phillips, both of McLean, Va., for plaintiff.

      Jessica L. Cole, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, with whom were Joseph H. Hunt, Assistant Attorney
General, Robert E. Kirschman, Jr., Director, and Patricia M. McCarthy, Assistant
Director, all of Washington, D.C., for defendant. Travis L. Vaughan, Office of
General Counsel, Defense Information Systems Agency, of Fort Meade, Md., of
counsel.




†This order was originally filed under seal, to allow the parties the opportunity to
propose redactions. No redactions were proposed. The order is reissued for
publication with a few minor, non-substantive corrections.
     Michael J. Gardner, Greenberg Traurig, LLP, with whom were Shomari B.
Wade and Brett A. Castellat, all of McLean, Va., for defendant-intervenor Solers,
Inc.

       Deneen J. Melander, Robbins, Russell, Englert, Orseck, Untereiner & Sauber,
LLP, with whom was Lanora C. Pettit, both of Washington, D.C., for defendant-
intervenor Northrop Grumman Systems Corp. Richard A. Sauber, of Washington,
D.C., of counsel.

       Gary J. Campbell, Womble Bond Dickinson (US) LLP, of Boston, Mass., with
whom were G. Matthew Koehl and Nathaniel J. Greeson, both of Washington, D.C.,
for defendant-intervenor Booz Allen Hamilton Inc.

                                      ORDER

WOLSKI, Senior Judge.

       For the reasons stated on the record at the status conference held on
Thursday, July 18, 2019, the cross-motions for judgment on the administrative
record of defendant and defendant-intervenors are GRANTED, and plaintiff ’s
motion for judgment on the administrative record is DENIED. A brief summary of
that ruling follows.

       In this case, after a Government Accountability Office (GAO) protest brought
by plaintiff Technatomy Corp. was sustained on two grounds and denied on several
others, see Admin. R. (AR) 36333–58, the Defense Information Systems Agency
(DISA or agency) undertook corrective action. This resulted in the award of task
order contracts to fifteen offerors, but the plaintiff was not among them. AR 36502.
Technatomy then filed this post-award bid protest, challenging the price
reasonableness and best value analyses conducted by DISA upon the GAO’s
recommendation, as well as several aspects of the technical evaluations that were
unsuccessfully advanced in the GAO protest. Compl. ¶¶ 176–212.

       The Court determined that DISA conducted a meaningful price
reasonableness analysis, in compliance with 48 C.F.R. § 15.404-1(b)(2), by
comparing the prices of offerors to each other’s, to the average price, to the
independent government cost estimate, and to the prices under other contracts, and
by explaining that variations were due to differing risk preferences and technical
approaches. See AR 36359–62. The Court also found that it was not arbitrary for
DISA to perform best-value tradeoffs only between plaintiff and the awardees with
higher prices and higher technical ratings. When an offeror beats the protester on
both grounds, no tradeoff is even possible, see 48 C.F.R. § 15.101-1(a), and the Court
notes that at least three non-awardees --- IPKeys, LongView International
Technology Solutions, and Unisys, see AR 4329–32, 4364–68, 4435–40 --- had lower
prices and better technical ratings than Technatomy. The tradeoffs that were

                                         -2-
performed properly focused on whether the specific qualities, strengths, and
associated benefits of proposals justified paying a higher price than what plaintiff
offered. See AR 36464–502. And the agency followed the solicitation criteria, see AR
492, in assigning and treating a rating of neutral confidence for one offeror’s past
performance, AR 4261, 36475 --- a determination that the Court cannot find
improper, given the great deference afforded to such judgments, see Gulf Grp., Inc.
v. United States, 61 Fed. Cl. 338, 356–57 (2004).

        Concerning aspects of the technical evaluations that were not addressed in
the corrective action, the Court found that none of Technatomy’s challenges
demonstrated arbitrary and prejudicial action by the agency. The sorting process
used by DISA in its initial source selection followed the relative importance of each
non-price factor and, contrary to Technatomy’s assertion, the second-most
important factor was decisive in the determination not to make an award to an
offeror. See AR 4462 (NCI, Inc.). The one weakness assigned plaintiff was
rationally supported, was based on solicitation criteria, and also did not affect its
technical rating. See AR 112–13, 2775, 4431–32. Although Technatomy appears to
be the only offeror to have received critical notations from the evaluation board
concerning proposal aspects that were not deemed weaknesses, see AR 4013, 4431,
these two notes did not factor into the best-value calculus, see AR 36464–502. The
Court found that the evaluation board’s failure to enter on a chart the dates that
the legal team and the board finished editing Technatomy’s evaluation did not
prove that the evaluation was not completed, but merely showed that the chart
itself was not completed --- as numerous other fields were left blank. See AR 3962–
68. The record did not support Technatomy’s speculative claim that evaluators
must have been too tired by the time they reached “T” in the alphabet to properly
focus on its problem statements submissions, as offerors Unisys and Vencore
received strengths for Factor 3. See AR 4436–38, 4444–46. 1 And plaintiff failed to
show that the agency arbitrarily deprived it of an “Outstanding” rating for Factor 4,
as the only offerors who achieved that rating had at least four strengths in the
factor, see AR 4271, 4299, 4312, 4368, 4375, 4404, 4418, 4440, 4448, compared to
Technatomy’s two, see AR 4433.

       One issue presented in this protest does warrant further elaboration. The
government, and intervenors Northrop Grumman and Booz Allen Hamilton, each
argue that the waiver rule from the Federal Circuit’s decision in Blue & Gold Fleet,
L.P. v. United States, 492 F.3d 1308, 1313–15 (Fed. Cir. 2007), should be extended
to preclude the protest grounds that Technatomy unsuccessfully raised before the
GAO. While the Federal Circuit has not applied the waiver rule outside of the
context of challenges to solicitation language, see, e.g., Sys. Appl. & Techs., Inc. v.


1 The Court notes that Factor 3 submissions were reviewed from November 2, 2017
to March 19, 2018, AR 4021, and that nothing in the record indicates that they were
reviewed in alphabetical order.
                                          -3-
United States (SA-TECH), 691 F.3d 1374, 1384–85 (Fed. Cir. 2012) (explaining that
only the “[p]art of the proposed corrective action” that concerned a “proposed
amendment to the solicitation” would have been waived if not brought before the
proposal submission deadline), many of our court’s judges, including the
undersigned, 2 have recognized that the rule should be applied in additional
circumstances.

        Typically, these circumstances involve bid protests brought by an initial
awardee challenging a decision to undertake corrective action, see NVE, Inc. v.
United States, 121 Fed. Cl. 169, 178–79 (2015), as such parties are injured by
having to win the same award twice, and the decision is neither interlocutory nor
without legal consequences, see SA-TECH, 691 F.3d at 1382, 1384. In contrast, the
initially unsuccessful offeror which obtains corrective action as a result of bringing
a GAO protest cannot usually be said to have been injured by this remedy,
particularly when the GAO recommended the course of action---as that office will
only do so when it has been convinced that the protester’s substantial chance of
winning the award would thereby be restored. See Statistica, Inc. v. Christopher,
102 F.3d 1577, 1581 (Fed. Cir. 1996) (citing McDonald-Bradley, B-270126, 96-1
CPD ¶ 54, 1996 WL 50643, *2 (Comp. Gen. Feb. 8, 1996)). 3 The government and its
allies nevertheless contend that by complaining about technical evaluation
determinations that were not revisited during the corrective action, Technatomy is
in reality attempting an untimely challenge to the scope of the corrective action.

       The Court rejects these arguments for two reasons. First, the Court does not
find that Technatomy could have brought these challenges once the corrective
action, recommended by the GAO, had begun. Because of that corrective action, the
decision which injured plaintiff---the source selection decision---was no longer in
force, and none of the technical evaluation decisions which plaintiff challenges were
the sort which necessarily disqualified plaintiff. Until the technical determinations
are applied in a best-value analysis and an award (or competitive range) decision,
they are interlocutory by nature. Thus, plaintiff had neither standing nor a ripe


2  See, e.g., Land Shark Shredding, LLC v. United States, No. 18-482C, 2018 WL
2306869, *1 (Fed. Cl. May 21, 2018) (finding challenge to cancellation of earlier
solicitation waived by participation in subsequent procurement); Cargo Transp. Sys.
Co. v. United States, No. 16-1481C, 2017 WL 1406862, *1 (Fed. Cl. Apr. 20, 2017)
(finding challenge to negative responsibility determination waived because this
decision prevented award to the protester, which knew of its baseless nature prior
to submitting a revised proposal).

3 Sufficient injury to support standing may be found for an unsuccessful offeror
which believes that voluntary corrective action would be futile, due to the alleged
bias of the procurement officials who are to conduct this action. See Jacobs Tech.
Inc. v. United States, 131 Fed. Cl. 430, 442–46 (2017).
                                         -4-
claim to pursue once the corrective action was announced. To find otherwise would
open the floodgates to bid protests challenging evaluation minutiae brought by
parties that had not yet even been excluded from a competitive range. 4

       Second, and more fundamentally, the Court finds that Technatomy preserved
these protest grounds by raising them before the GAO in the first place. The Blue
& Gold waiver rule takes aim at the inefficiencies that would otherwise result from
the strategic behavior of offerors who keep patent errors to themselves until a costly
and time-consuming stage of a procurement is avoidably conducted to completion.
See Blue & Gold, 492 F.3d at 1314–15. It is not disputed that plaintiff ’s protest
grounds concerning the technical evaluations of proposals were previously included
in the GAO protest, and a timely, formal objection is all that is necessary to
preserve grounds that are subject to Blue & Gold waiver. See DGR Assocs., Inc. v.
United States, 690 F.3d 1335, 1338–39, 1343 (Fed. Cir. 2012) (recognizing that a
challenge to a solicitation term, in a post-award bid protest filed in our court, was
preserved by the filing of a formal, agency-level protest before the proposal
submission deadline); cf. Synergy Sols., Inc. v. United States, 133 Fed. Cl. 716, 739–
40 (2017) (finding protest ground waived because it was not included in a previous
GAO protest rendered academic by voluntary corrective action). Far from waiving
these protest grounds, Technatomy preserved them by including them in its GAO
protest. See Vanguard Recovery Assistance v. United States, 99 Fed. Cl. 81, 90–92
(2011). While the extension of Blue & Gold urged by the government and two
intervenors would no doubt make the GAO a less attractive forum for bid protests,
the Court does not see how requiring winning GAO protesters to protest their own
corrective actions can be considered efficient.

      For the foregoing reasons, as well as the reasons stated on the record at the
status conference held on Thursday, July 18, 2019, plaintiff ’s motion for judgment
on the administrative record is DENIED; the government’s, Northrop Grumman’s,
and Booz Allen Hamilton’s motions to dismiss Count III are DENIED; and
defendant’s and intervenors’ cross-motions for judgment on the administrative
record are GRANTED. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

                                        s/ Victor J. Wolski
                                        VICTOR J. WOLSKI
                                        Senior Judge


4 The only opinion from our court which could be viewed as supporting such a
result, Global Dynamics, LLC v. United States, 130 Fed. Cl. 211 (2016), involved an
agency request during discussions which the protester believed was unlawful in the
absence of certain solicitation language, similar to (or the flip-side of) the situation
presented in Blue & Gold. See id. at 214–16.
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