Case: 19-1862     Document: 44   Page: 1    Filed: 04/15/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                ESKRIDGE & ASSOCIATES,
                    Plaintiff-Appellant

                            v.

                    UNITED STATES,
                    Defendant-Appellee

     ANSIBLE GOVERNMENT SOLUTIONS, LLC,
                    Defendant
              ______________________

                        2019-1862
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:18-cv-02001-CFL, Senior Judge Charles F. Lettow.
                   ______________________

                  Decided: April 15, 2020
                  ______________________

    TIMOTHY TURNER, Whitcomb, Selinsky, PC, Denver,
 CO, argued for plaintiff-appellant.

     TANYA KOENIG, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for defendant-appellee. Also represented
 by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR.,
 DOUGLAS K. MICKLE.
                  ______________________
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 2                   ESKRIDGE & ASSOCIATES v. UNITED STATES




 Before PROST, Chief Judge, SCHALL and WALLACH, Circuit
                         Judges.
 WALLACH, Circuit Judge.
     Appellant Eskridge & Associates (“Eskridge”) filed a
 bid protest in the U.S. Court of Federal Claims, protesting
 the award of a U.S. Department of the Army (“Army”) con-
 tract to a competitor. Following Eskridge’s motion for judg-
 ment on the administrative record, the Court of Federal
 Claims concluded that Eskridge lacked standing, as it was
 not an interested party pursuant to 28 U.S.C. § 1491, and
 dismissed the protest. See Eskridge & Assocs. v. United
 States, 142 Fed. Cl. 410, 425 (2019) (Opinion and Order);
 Judgment, Eskridge & Assocs. v. United States, No. 18-
 2001 (Fed. Cl. Mar. 19, 2019), ECF No. 26.
    Eskridge appeals. We have jurisdiction pursuant to 28
 U.S.C. § 1295(a)(3). We affirm.
                        BACKGROUND 1
      In 2016, the Army sought to procure the services of cer-
 tified registered nurse anesthetists (“CRNAs”) for the
 Womack Army Medical Center, located in Fort Bragg,
 North Carolina, by issuing a solicitation (“the 2016 Solici-
 tation”). See Eskridge, 142 Fed. Cl. at 412–13. Relevant
 here, the Army performed a price realism analysis of the
 proposals made in response to the 2016 Solicitation. Id.
 at 412. Eskridge bid on the 2016 Solicitation, but the so-
 licitation was cancelled in 2017 in connection with a cor-
 rective action (“the 2017 Protest”). Id. Later in 2017, the
 Army released a preview for a new solicitation for the
 CRNAs at Fort Bragg. Id. at 413. The preview outlined



     1   Unless otherwise noted, we will rely on the uncon-
 tested facts as presented by the Court of Federal Claims.
 See generally Appellant’s Br., Appellee’s Br. Where the
 parties disagree, we rely on the record.
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 the award of a contract on a fixed-price basis for a base pe-
 riod of six months, with the addition of four option years to
 follow, and estimated a cost of $21,034,111.20. Id. The
 preview also stated that performance was expected to com-
 mence on April 1, 2018 and to end by September 30, 2022.
 Id.
      In early January 2018, the Army filed a solicitation
 with bids due three weeks later (“the 2018 Solicitation”).
 Id. In addition to listing various requirements and expec-
 tations, the 2018 Solicitation provided the method by
 which the Army intended to evaluate the bids—the “lowest
 price technically acceptable . . . approach.” Id. (capitaliza-
 tion altered). Specifically, the 2018 Solicitation stated that
 the Army would “initially list proposals from lowest to
 highest price,” and then “evaluate the technical acceptabil-
 ity of the five lowest-priced bids.” Id. (internal quotation
 marks and citation omitted). If any of those five bids were
 rated technically acceptable, the Army would “not evaluate
 any other proposals,” and instead “award the contract to
 the lowest-priced, technically acceptable bidder.” Id. (in-
 ternal quotation marks and citation omitted). The price
 “would act as a filter,” allowing the Army to review only the
 five lowest-priced bids for the detailed technical evalua-
 tion. Id. The Army provided three categories to determine
 if a bid was technically acceptable: (1) “[g]eneral compli-
 ance with solicitation requirements”; (2) technical merit,
 scored on six subfactors; and (3) past performance. Id. (ci-
 tation omitted). In the 2018 Solicitation, the Army set the
 minimum compensation rate for a CRNA at $113.89 per
 hour, inclusive of fringe benefits. Id. at 414. The addition
 of the minimum compensation rate—which had not been
 included in the 2016 Solicitation—was provided in lieu of
 the 2016 Solicitation’s price realism analysis, as “the Army
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 4                   ESKRIDGE & ASSOCIATES v. UNITED STATES




 believed the minimum acceptable wage rate acted as a
 price realism regulator[.]” Id. 2
     The Army received eighteen timely, complete pro-
 posals. Id. Before the Army could evaluate the proposals,
 however, Eskridge filed a pre-award protest with the Gov-
 ernment Accountability Office (“GAO”), alleging that the
 Army “acted in bad faith” regarding the 2018 Solicitation—
 by failing to include language allegedly agreed upon follow-
 ing the 2016 Solicitation’s cancellation—and that the 2018
 Solicitation was ambiguous. Id. at 414–15 (internal quota-
 tion marks and citation omitted). The Army responded, re-
 questing that the GAO dismiss the protest, contending that
 Eskridge failed “to allege facts upon which a legally suffi-
 cient assertion of bad faith could be based.” Id. at 415 (in-
 ternal quotation marks and citation omitted). The Army
 explained that its reference in the 2018 Solicitation to 48
 C.F.R. § 52.222-46, which requires compensation realism
 evaluations, “fulfilled the Army’s obligation arising from
 its informal agreement” after the 2016 Solicitation was
 cancelled. Id. (internal quotation marks and citation omit-
 ted); see 48 C.F.R. § 52.222-46. 3 Eskridge withdrew its




     2    The 2018 Solicitation was amended multiple times
 and included, inter alia, an increase to the minimum com-
 pensation rate to $121.22 per hour. Id.
     3    Section 52.222-46 provides for the evaluation of
 compensation for professional employees. The regulation
 requires that professional employees in the service of the
 federal government “be properly and fairly compensated,”
 as it is “in the [federal government’s] best interest.” 48
 C.F.R. § 52.222-46(a). Accordingly, the regulation provides
 requirements that proposals for the solicitations of profes-
 sional employees undergo various evaluations to ensure
 that the employees are compensated at rates that will en-
 sure “uninterrupted[,] high-quality work.” Id. “Failure to
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 protest two days after the Army responded. Eskridge, 142
 Fed. Cl. at 415.
      After Eskridge withdrew its protest, the Army com-
 menced its evaluation process. Id. The Army sorted the
 bids according to price; Eskridge’s bid was not ranked
 among the five lowest proposals. Id. The Army conducted
 its technical evaluations of the lowest proposals and, find-
 ing three of the five to be technically acceptable, sent noti-
 fications to the thirteen unsuccessful bidders, including
 Eskridge. Id. The Army awarded the contract (“Contract”)
 to Ansible Government Solutions, LLC (“Ansible”), after
 determining that Ansible provided the lowest-priced, tech-
 nically acceptable proposal. Id. at 417.
     In March 2018, Eskridge filed another protest with the
 GAO. Id. Eskridge alleged that the Army’s determination
 was “unreasonable, capricious, and contrary to law” and
 that its “evaluation was ambiguous and contrary to the
 terms of the [2018] [S]olicitation.” Id. (internal quotation
 marks and citation omitted). The Army requested that the
 GAO dismiss Eskridge’s protest, arguing that Eskridge
 was not an interested party “because there were [multiple]
 proposals that were evaluated as [t]echnically [a]cceptable
 with . . . lower prices than [Eskridge’s] proposal.” Id. (cita-
 tion omitted) (all alterations except ellipsis in original). On
 April 1, 2018, while proceedings were ongoing before the
 GAO, the Army signed the Contract with Ansible. Id.
 Eskridge filed a response to the Army’s request for dismis-
 sal on April 6 and, on April 13, the Army issued a stop work
 order to Ansible. Id. at 417–18. On April 18, the Army
 took corrective action by issuing a memorandum that indi-
 cated it would “‘revise the source selection documents in
 order to better document the selection and award process’
 and to ‘review the evaluations of the proposals [to


 comply . . . may constitute sufficient cause to justify rejec-
 tion of a proposal.” Id. § 52.222-46(d).
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 determine] if [Ansible] fully compl[ied] with’” the require-
 ments of the 2018 Solicitation. Id. at 418 (citation omitted)
 (alterations in original).
      In April 2018, the Army reevaluated the proposals as
 set forth in its corrective action memorandum. Id. The
 Army reviewed the ten lowest-priced bidders on both tech-
 nical and past performances bases. Id. Five of the ten bid-
 ders were deemed technically unacceptable. Id. at 419. Of
 the five technically acceptable bidders, Eskridge bid the
 highest total price at $18,124,729.20. Id. Ansible’s pro-
 posal bore the total price of $16,565,078.40. Id. The Army
 compared each line of the itemized proposed price against
 the independent government estimate (“IGE”) to determine
 if each itemized price was fair and reasonable. Id. 4 Ansi-
 ble’s proposed prices were 14 to 25 percent less than the
 IGE, while Eskridge’s proposed prices were between 13
 to 14 percent below the IGE. Id. The Army awarded the
 Contract to Ansible and notified the nine unsuccessful bid-
 ders. Id. at 419–20.
     In August 2018, Eskridge filed a post-award protest
 with the GAO, claiming the Army’s determination process
 was “‘ambiguous and contrary’ to the solicitation, ‘unrea-
 sonable, arbitrary, and contrary to law,’” and conducted in
 bad faith, alleging the Army did not adhere to the terms
 agreed upon following the 2016 Solicitation. Id. at 420


     4   The IGE was an estimate “based upon [the Army’s]
 assessment of base salaries paid in the local area as well as
 salaries paid on current contracts.” J.A. 170. In the 2018
 Solicitation, the Army determined it would review compen-
 sation as part of its technical evaluation of the proposals,
 and “[a] low, or no [c]ompensation [p]lan, may be viewed as
 evidence of failure to comprehend the complexity of the
 contract requirements or appropriate compensation levels
 for [the] geographic area where performance will take
 place.” J.A. 170.
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 (internal citations omitted). Eskridge also argued that An-
 sible’s bid and the other bids lower than its own were too
 close to the proposal’s “minimum bid” of $15,186,441.60.
 Id. In November 2018, the “GAO dismissed Eskridge’s pro-
 test, finding Eskridge was not an interested party.” Id.
 at 421. Specifically, the GAO determined that Eskridge’s
 arguments were “unpersuasive,” as the other three unsuc-
 cessful bidders that had provided proposals with total
 prices lower than Eskridge’s had “a more direct economic
 interest in this procurement.” Id. (internal quotation
 marks and citation omitted). Additionally, the GAO found
 unpersuasive Eskridge’s argument that the three other
 bidders with “proposed prices that were in the neighbor-
 hood of Ansible’s also should [be] assessed as nonrespon-
 sive,” as there was less than a $200,000 difference between
 Eskridge’s bid and the next lowest bid. Id. (internal quota-
 tion marks and citation omitted).
     In December 2018, Eskridge filed a complaint in the
 Court of Federal Claims, alleging that the “Army’s decision
 to award the [C]ontract to Ansible [is] arbitrary, capricious,
 or contrary to law” and requesting the Court of Federal
 Claims to “issue a declaratory judgment that the Army’s
 award was in violation of its own solicitation and of pro-
 curement laws” and to “order the Army to award the . . .
 [C]ontract to Eskridge.” Id. at 412, 421. The Court of Fed-
 eral Claims dismissed all of Eskridge’s claims. Id. at 425.
 In doing so, the Court of Federal Claims first addressed
 whether Eskridge had a substantial chance of winning the
 Contract and concluded that it did not. Id. at 422–23. The
 Court of Federal Claims reasoned that all five technically
 acceptable bidders exceeded the minimum compensation
 rate required by the Army. Id. at 422. Second, the Court
 of Federal Claims determined that, because Eskridge’s bid
 was valued within $200,000 of the next lowest bid,
 Eskridge’s bid would fail alongside the other four lower
 bids under Eskridge’s own argument that all bids “‘in the
 neighborhood’ of Ansible’s were so low as to represent a
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 8                   ESKRIDGE & ASSOCIATES v. UNITED STATES




 facially unreasonable bid.” Id. at 422–23. Third, the Court
 of Federal Claims determined that “the claims of error
 Eskridge makes in this protest focus primarily on the
 Army’s alleged failure to conduct a compensation realism
 analysis, which as a practical matter would affect each of
 the five lowest-priced, technically acceptable proposals
 equally.” Id. at 423.
      The Court of Federal Claims also addressed Eskridge’s
 claim that the Army failed to incorporate terms it pledged
 to include following the 2017 Protest. Id. at 424. It con-
 cluded that Eskridge waived the issue, as a timely com-
 plaint would have come in a pre-award protest. Id. The
 Court of Federal Claims concluded that, in any event, the
 Army fulfilled its obligations following the 2017 Protest, as
 it “incorporated by reference [48 C.F.R.] § 52.222-46, which
 put all [bidders] on notice that the Army intended to con-
 duct an analysis of compensation realism as part of the
 technical evaluation.” Id. at 424–25. The Court of Federal
 Claims dismissed the Complaint, concluding that “because
 Eskridge offered the fifth highest technically acceptable
 bid and its protest does not make a credible challenge to
 the technical acceptability of four lower bids,” “Eskridge
 cannot show a direct economic interest in the protest and
 consequently is not an interested party and lacks stand-
 ing.” Id. at 425.
                         DISCUSSION
         I. Standard of Review and Legal Standard
     “Whether a party has standing to sue is a question that
 [we] review de novo.” Am. Fed’n of Gov’t Emps. v. United
 States, 258 F.3d 1294, 1298 (Fed. Cir. 2001) (internal quo-
 tation marks and citation omitted). Section 1491 provides
 that the Court of Federal Claims
     shall have jurisdiction to render judgment on an
     action by an interested party objecting to a solicita-
     tion by a Federal agency for bids or proposals for a
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     proposed contract or to a proposed award or the
     award of a contract or any alleged violation of stat-
     ute or regulation in connection with a procurement
     or a proposed procurement.
 28 U.S.C. § 1491(b)(1) (emphasis added). The statute pro-
 vides that the Court of Federal Claims shall have jurisdic-
 tion over an objection brought by “an interested party,” but
 does not define the term. See id. § 1491.
      We have held that the “interested party” term under
 § 1491 must be interpreted in accordance with the standing
 requirements provided by the Competition in Contracting
 Act (“CICA”), 31 U.S.C. §§ 3551–56. See Am. Fed’n, 258
 F.3d at 1300–02; see also Myers Investigative & Sec. Servs.,
 Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002)
 (“[I]n our recent decision in American Federation, we held
 that [§] 1491(b)(1) did not adopt the [Administrative Proce-
 dure Act’s] liberal standing standards, and that the nar-
 rower standards—consistent with the [CICA]—continued
 to apply.” (internal citation omitted)). “In bid protests un-
 der [§ 1491], we . . . construe the term ‘interested party’ in
 [§] 1491(b)(1) in accordance with the [standing require-
 ments of the] CICA and hold that standing under
 § 1491(b)(1) is limited to actual or prospective bidders or
 offerors whose direct economic interest would be affected by
 the award of the contract or by failure to award the con-
 tract.” Myers Investigative, 275 F.3d at 1370 (third brack-
 eted addition and ellipsis in original) (emphasis added)
 (internal quotation marks and citation omitted). We have
 stated that “[t]o prove a direct economic interest as a puta-
 tive prospective bidder, [the protestor] is required to estab-
 lish that it had a ‘substantial chance’ of receiving the
 contract.” Rex Serv. Corp. v. United States, 448 F.3d 1305,
 1308 (Fed. Cir. 2006); see Info. Tech. & Applications Corp.
 v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“To
 establish prejudice, [the protestor] must show that there
 was a ‘substantial chance’ it would have received the con-
 tract award but for the alleged error in the procurement
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 10                   ESKRIDGE & ASSOCIATES v. UNITED STATES




 process.” (citation omitted)); Statistica, Inc. v. Christopher,
 102 F.3d 1577, 1581 (Fed. Cir. 1996) (similar).
       II. Eskridge Lacks Standing to Bring a Protest
     The Court of Federal Claims determined that Eskridge
 lacked standing to bring a post-award protest because it
 did not have a direct economic interest since it did not have
 a substantial chance of receiving the Contract. See
 Eskridge, 142 Fed. Cl. at 422–23. Eskridge contends that
 the Court of Federal Claims erred in concluding that it did
 not have a direct economic interest as it would have had a
 substantial chance of winning the Contract “but for the
 Army’s errors in evaluating technical acceptability.” Ap-
 pellant’s Br. 18. We disagree with Eskridge.
     Eskridge bid on the 2018 Solicitation, so we focus our
 inquiry on whether Eskridge possesses the requisite direct
 economic interest. To be an interested party, a bidder must
 have a “direct economic interest [that] would be affected by
 the award of the contract.” Myers, 275 F.3d at 1370. We
 conclude that Eskridge does not possess such a direct eco-
 nomic interest. In a post-award bid protest, the relevant
 inquiry is whether the bidder had a “substantial chance” of
 winning the award—specifically, whether a protestor “es-
 tablish[ed] not only some significant error in the procure-
 ment process, but also that there was a substantial chance
 it would have received the contract award but for that er-
 ror.” Statistica, 102 F.3d at 1582; see United States v. Int’l
 Bus. Machs. Corp., 892 F.2d 1006, 1010–11 (Fed. Cir. 1989)
 (concluding that a bid protestor had “at best, a trivial in-
 terest in the award” and therefore no economic interest
 where, if the protest were successful, the award would go
 to another party); see also Impresa Construzioni Geom. Do-
 menico Garufi v. United States, 238 F.3d 1324, 1334 (Fed.
 Cir. 2001) (summarizing cases). Eskridge failed to demon-
 strate that it would be in line for the Contract. First, even
 if Ansible was removed from the running for some reason,
 the award would go to one of the other three lower-priced,
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 technically acceptable bids that ranked before Eskridge,
 and Eskridge still would not have a substantial chance of
 winning the award. See Eskridge, 142 Fed. Cl. at 424 (ex-
 plaining that there were three lower-priced, technically ac-
 ceptable bids between Ansible’s and Eskridge’s bids); see
 also Int’l Bus. Machs., 892 F.2d at 1010–11 (finding no di-
 rect economic interest where there is a lower-priced, tech-
 nically acceptable bid). 5
     Second, Eskridge fails to allege prejudice sufficient to
 require the Contract to be rebid, which would have allowed
 Eskridge to compete again. A bidder has an economic in-
 terest and therefore standing to challenge a contract award
 where, “if the [bidder’s] bid protest were allowed because of
 an arbitrary and capricious responsibility determination
 by the contracting officer, the government would be obli-
 gated to rebid the contract, and [the bidder] could compete
 for the contract once again.” Impresa, 238 F.3d at 1334.
 Outside of its contention that the Army failed to conduct a
 compensation realism analysis, Eskridge does not allege al-
 ternate grounds which, if true, would require rebidding.
 See generally Appellant’s Br. Cf. Info. Tech., 316 F.3d
 at 1319 (determining that a disappointed bidder estab-
 lished the requisite prejudice for standing, as the party was
 a qualified bidder whose proposal met minimum contract
 requirements and “its chances of securing the contract in-
 creased if the problem [alleged] . . . was cured”).
    Eskridge’s   counterarguments       are   unavailing.
 Eskridge contends that it would have a chance of being
 awarded the Contract, because its challenge encompasses


     5    To the extent that Eskridge is protesting the terms
 of the 2018 Solicitation, such a challenge is untimely. See
 Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308,
 1313 (Fed. Cir. 2007) (holding that a party waives the abil-
 ity to object to the terms of a solicitation if it fails to do so
 before the close of the bidding process).
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 all four lower-priced bidders due to the Army’s improper
 determination that they were technically acceptable when
 they were in fact deficient. See Appellant’s Br. 18 (“[T]he
 Army committed substantial errors by failing to adhere to
 evaluation criteria pertaining to retention and recruiting
 of CRNAs,” “which allowed four bidders to submit wage
 rates and pricing wholly inadequate to retain and recruit
 CRNAs in the latter option years of the contract[.]”). Spe-
 cifically, Eskridge asserts—notably without providing rec-
 ord support—that the 2018 Solicitation required that
 “wage rates must increase proportionally per option year
 at a percentage necessary to maintain and sustain the
 workforce throughout the life of the contract.” Id. at 19.
      This argument fails, hinging on a faulty premise: For
 Eskridge’s argument to prevail, the 2016 Solicitation’s
 price realism analysis requirement—which Eskridge sug-
 gests would engender the need for proportional and annual
 wage increases—must have been imputed into the 2018 So-
 licitation. It was not incorporated. The Army specified
 that in the 2018 Solicitation, it had removed the 2016 So-
 licitation’s price realism analysis requirement and, in its
 place, added the minimum compensation rate requirement.
 See Eskridge, 142 Fed. Cl. at 414 (“[T]he Army made th[e]
 [minimum compensation rate] addition because the prior
 iteration of this procurement—unlike the current one—in-
 corporated price realism in a best value trade-off analy-
 sis.”); see J.A. 171 (2018 Solicitation) (setting the initial
 “minimum acceptable provider wage rate” at $113.84 (cap-
 italization altered)), 159–72 (2018 Solicitation) (providing
 for no annual wage increase in option years). All four of
 the lower-priced bids met the compensation rate require-
 ment, see Eskridge, 142 Fed. Cl. at 414–15; see also
 J.A. 861–65, and so the Court of Federal Claims did not err
 in determining the bids were technically acceptable on that
 basis, see Int’l Bus. Machs., 892 F.2d at 1011 (explaining
 that, where every bidder “offers essentially the same
 [bid,] . . . materially differ[ing] only as to price, the
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 ESKRIDGE & ASSOCIATES v. UNITED STATES                    13



 solicitation itself is not challenged, and there is no reason
 to believe that the second-lowest bid is not responsive, only
 the second-lowest bidder has a direct economic interest”).
      Similarly, Eskridge’s claim that the Army erred by rat-
 ing the four lower bidders as technically acceptable—de-
 spite their offering of wage rates that “fall[] below the
 median rate established by the IGE” for two option years—
 is flawed. Appellant’s Br. 21. The compensation realism
 analysis specified in the 2018 Solicitation requires the
 Army to measure each bid’s price against the minimum
 hourly rate provided for, which the Army did. See
 Eskridge, 142 Fed. Cl. at 422. In contrast, the IGE analysis
 is used to determine whether each bidder’s pricing was
 “[f]air and reasonable.” Id. at 419 (citation omitted); see
 J.A. 859 (2018 Solicitation Source Selection Decision Doc-
 ument) (“Fair and reasonable pricing can be determined by
 comparison to the [IGE].”). Compensation realism analysis
 evaluates whether a proposed compensation is too low,
 Eskridge, 142 Fed. Cl. at 423, while the fair and reasonable
 analysis determines if it is too high. See Triad Int’l Maint.
 Corp., B-408374, 2013 WL 4854436, at *7 (Comp. Gen.
 Sept. 5, 2013) (citing Milani Constr., LLC, B-401942, 2010
 CPD ¶ 87 at 4 (Comp. Gen. Dec. 22, 2009)). For the reasons
 stated above, the Army did not err in its compensation re-
 alism analysis. Accordingly, because Eskridge failed to
 demonstrate a direct interest, it does not have standing to
 protest.
                        CONCLUSION
     We have considered Eskridge’s remaining arguments
 and find them unpersuasive. Accordingly, the Judgment of
 the U.S. Court of Federal Claims is
                        AFFIRMED
