      In the United States Court of Federal Claims
                                    No. 19-330C
                           (Filed under seal July 31, 2019)
                             (Reissued August 14, 2019) †

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
NOVETTA, INC.,                    *
                                  *
                 Plaintiff,       *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant,       *
                                  *
      and                         *
                                  *
SOLERS, INC., NORTHROP            *
GRUMMAN SYSTEMS CORP. and *
BOOZ ALLEN HAMILTON, INC., *
                                  *
           Defendant–Intervenors. *
                                  *
* * * * * * * * * * * * * * * * * *


                                      ORDER

       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.

      The Court found that two strengths originally assigned to plaintiff Novetta
by the Technical Evaluation Board (TEB) under Factor 1 were not arbitrarily
removed by the Source Selection Evaluation Board (SSEB). See Admin. R. (AR)

† This order was originally filed under seal, to allow the parties the opportunity to
propose redactions. No redactions were proposed, and the order is reissued with a
couple minor, non-substantive corrections.
4390, 4891–92, 36365. And although the SSEB arbitrarily combined two of
Novetta’s strengths identified by the TEB into just one strength under Factor 1, see
AR 4390, this determination was not prejudicial. The SSEB apparently combined
the two strengths because the development of products in the same five technical
areas were used as examples for both of the factor elements, making the examples
“not significantly different enough to warrant two separate strengths.” Id.; see AR
14030–34. On the other hand, despite overlap in the projects used as examples for
these two elements, see AR 1308–11, two separate strengths were assigned to
intervenor Solers---because the evaluators credited different examples under each
element, see id. 36374. The Court cannot find it rational for an offeror to be
assigned one fewer strength merely because it used the same large group of projects
to address two different elements, rather than splitting them up into two distinct,
smaller groups. But the combination of two strengths into one was not prejudicial,
because the resulting narrative recounted the beneficial qualities identified for each
strength, see AR 4389–90, 36377, and thus the Source Selection Authority was
aware that Novetta’s proposal contained both types of benefits when he conducted
his best-value tradeoff analysis.

      Plaintiff contended it was the victim of unequal treatment, identifying
numerous strengths assigned to other offerors under Factors 1 and 3 for proposal
aspects which it believed were similar to those in its own proposal. But proposal
aspects must be “nearly identical” or “indistinguishable” to demonstrate
inconsistent subjective judgments, Enhanced Veteran Sols., Inc. v. United States,
131 Fed. Cl. 565, 588 (2017), else our court would be drawn into the impermissible
second-guessing of evaluation minutiae, see E.W. Bliss Co. v. United States, 77 F.3d
445, 449 (Fed. Cir. 1996). The Court did not find the highlighted aspects of
Novetta’s proposal to be indistinguishable from those of its competitors.

       The Court found that the agency’s decision to forego discussions, AR 4223–25,
was rationally supported and sufficiently explained, and did not rest on unlawful
considerations. The Court did not, however, construe Novetta’s challenge to be
directed at the solicitation clause announcing the agency’s intention to award
without discussions, see AR 488, and thus the government’s motion to dismiss
Count IV as untimely was DENIED. The Court also rejected plaintiff ’s argument
that the best value determination was arbitrary. Although the agency had initially
erred in including a Factor 1 strength for offeror NES that had been removed by the
SSEB, see AR 4376, 36417–20, that strength was not highlighted in the initial
determination. The corrected analysis reflected a qualitative (seven valuable and
beneficial strengths offered by NES compared to two strengths of Novetta) and price
(more than $154 million lower) advantage for NES, making the determination far
from irrational. See AR 36663.

      Finally, the Court rejected the arguments of the government and intervenor
Northrop Grumman that the waiver rule from the Federal Circuit’s decision in Blue

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& 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 Novetta raised in a GAO protest
but were not addressed during the subsequent corrective action. The notice
requirement of Blue & Gold was satisfied by Novetta’s timely filing of the GAO
protest, see DGR Assocs., Inc. v. United States, 690 F.3d 1335, 1338–39, 1343 (Fed.
Cir. 2012); Vanguard Recovery Assistance v. United States, 99 Fed. Cl. 81, 90–92
(2011); 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), and the corrective action
won before the GAO removed the injury of the source selection decision, converting
the other protest grounds to interlocutory decisions. See Technatomy Corp. v.
United States, No. 19-369C, 2019 WL 3806895, at *2–3 (Fed. Cl. July 31, 2019).

      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, and the government’s and defendant-
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




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