     In the United States Court of Federal Claims
                               No. 13-144C
                      (Originally Filed: May 9, 2013)
                        (Reissued: May 29, 2013)1

**********************

CHAMELEON INTEGRATED
SERVICES, INC.,

                     Plaintiff,
                                             Bid protest; Federal
v.
                                             Acquisition Streamlining Act;
                                             task order contract; STARS II
UNITED STATES,
                                             GWAC.

                     Defendant,

CSSS.net,

                     Intervenor.

**********************

       Robert J. Symon, Washington, DC, for plaintiff.

       Austin Fulk, United States Department of Justice, with whom were
Steven J. Gillingham, Assistant Director, Jeanne E. Davidson, Director, and
Stuart F. Delery, Assistant Attorney General, Washington, DC, for defendant.

       Pamela J. Mazza, Washington, DC, for intervenor.




1
 The court issued this opinion under seal on May 9, 2013, requesting proposed
redactions by May 24, 2013. Proposed redactions were only received from
plaintiff. Plaintiff’s redactions are indicated by brackets.
                                   OPINION

BRUGGINK, Judge.

       This is a post-award bid protest. It involves a challenge by plaintiff,
Chameleon Integrated Services, Inc. (“Chameleon”), to the award by the
United States Department of Agriculture (“USDA”) of a task order to
intervenor, CSSS.net (“CSSS”), under a pre-existing government-wide
acquisition contract (“GWAC”), STARS II.2 Plaintiff alleges in its motion for
judgment on the administrative record that the award to CSSS was
unreasonable, among other reasons, because CSSS received an unfair
advantage during the preparation of final offers.

        The United States moves to dismiss the protest for lack of jurisdiction.
It argues that the Federal Acquisition Streamlining Act (“FASA”)3 applies to
task orders issued under STARS II and bars jurisdiction in this court. In the
alternative, the United States moves for judgment on the administrative record.
Intervenor also moves for judgment on the administrative record. The matter
is fully briefed, and we held oral argument on April 30, 2013. For the reasons
set out below, we grant the motion to dismiss and deny plaintiff’s motion for
judgment on the administrative record.

                                 BACKGROUND 4

       STARS II is a GWAC administered by the General Services
Administration. The contract defines itself as a “Multiple Award (MA),
Indefinite-Delivery, Indefinite-Quantity (IDIQ) contract” to provide IT
services. STARS II Contract (hereinafter “STARS II”) § I.1.1.5 Although the


2
  “STARS” refers to Streamlined Technology Application Resource for
Services.
3
 Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat.
3243 (codified in scattered sections of 10 U.S.C. and 41 U.S.C.).
4
  The facts are drawn from the Administrative Record (“AR”) and are
undisputed.
5
    See   “8(a)   STARS     II    contract,”   GSA.gov    (April    15, 2013),
                                                                   (continued...)

                                        2
parties disagree about the precise origins and nature of GWAC contracts, we
think it is undisputed that a critical part of their parentage, as the contract itself
indicates, is “Section 5112(e) of the Clinger-Cohen Act,6 40 U.S.C. 11302(e).”
STARS II § I.2.1. This citation refers to chapter 113 of title 40 of the United
States Code, “Responsibility for Acquisitions of Information Technology.” 40
U.S.C. § 11301 (2006). Section 11302(e) of title 40 instructs the Director of
the Office of Management and Budget to “designate the head of one or more
executive agencies, as the Director considers appropriate, as executive agent
for Government-wide acquisitions of information technology.” 40 U.S.C. §
11302(e). The Director has chosen GSA as one of the executive agents for IT
procurements. STARS II § I.2.1.7 The contract notes that “this designation
includes GSA’s role and responsibility to award and administer the Basic
Contract.” STARS II § I.2.2.

       Further, “STARS II is established under the authority of the Small
Business Act,” id. § I.2.1. See 15 U.S.C. § 637(a) (2006). STARS II is thus
exclusive to “Small Business Administration (SBA) certified 8(a) prime
contractors with competitive prices.” STARS II Contract § I.1.1. There are
over 500 companies currently holding a STARS II contract with GSA.8

      The master contract also cites several provisions of FASA’s
implementing regulations: Federal Acquisition Regulation (“FAR”)9 Subpart


5
 (...continued)
http://www.gsa.gov/portal/content/208261.
6
 See National Defense Authorization Act for Fiscal Year 1996, Pub. L. No.
104-106, § 5112(e), 110 Stat. 186, 680-81 (1996) (codified as amended at 40
U.S.C. § 11301-11331 (2006)).
7
  There are other GWACs to which GSA and other agencies have been
assigned the role of executive agent. John Cibinic, Jr., Ralph C. Nash, Jr., &
Christopher R. Yukins, Formation of Government Contracts 1192 (4th ed.
2011).
8
 See “List of 8(a) STARS II Contract Holders,” GSA.gov (April 15, 2013),
http://www.gsa.gov/portal/content/208261.
9
    All references to FAR are to the Federal Acquisition Regulation and are
                                                              (continued...)

                                          3
16.5, “Indefinite-Delivery Contracts.” Section III of the master contract,
“Contract Administration,” for example, states that “[p]ursuant to FAR
16.504(a)(4)(vi), only authorized users may place Orders under the Basic
Contract.” STARS II § III.2.1. The contract also cites FAR Subpart 16.5 as
controlling protests of orders made under STARS II. Protests are not allowed
for orders valued less than $10,000,000, unless “the order increases the scope,
period of performance, or maximum value of the Contract consistent with FAR
16.505.(a)(9).”10 Id. § III.10.1. STARS II further refers to a “designated
Ombudsman” who is to receive disputes “[i]n accordance with FAR 16.5.” Id.
§ III.11.1.11

        Both plaintiff and intervenor contracted with GSA before the
solicitation in this case to be eligible for awards under the STARS II contract.
The solicitation process began on December 6, 2011, when USDA issued a
sources sought notice on the GSA eBuy website. AR 493, 3919. The notice
stated that “USDA is soliciting firms to provide computer operations support
services under the GSA 8(a) STARS II [GWAC].” AR 493. USDA attached
a draft statement of work to the notice and asked contractors to opt-in if they
wished to participate. See id. One hundred and seven contractors opted-in by
December 20, 2011. AR 3919. USDA then issued Solicitation No. AG-3142-
S-12-0009 on January 19, 2012.

       The Request for Quotations (“RFQ”) reflected that USDA is seeking
various IT services for the National Information Technology Center, including
help with hardware, security, alerts, and other matters. AR 123-25. The award
included a base task order from which other orders may issue. AR 121. The
RFQ provided details on what services are required and explained that offerors
were to be evaluated based on their ability to satisfy these requirements.
Quotations were to consist of three volumes: a technical proposal, a past
performance proposal, and a price/business proposal. AR 203.




9
 (...continued)
codified, unless otherwise noted, as of October 1, 2012, at Title 48 of the Code
of Federal Regulations.
10
     The current provision appears at 48 C.F.R. § 16.505(a)(10) (2012).
11
     See 48 C.F.R. § 16.505(b)(6).

                                        4
        Technical proposals were to be composed of three parts: a staffing plan,
a corporate security plan, and a transition plan. AR 205. Past performance
proposals had to provide general information about the offeror, including a
brief history of the company. AR 207. The final element of the quotation, the
price/business proposal, contained the offeror’s pricing information. AR 208.
Each offeror was to supply a price schedule that “use[s] rates from the
offeror’s current GSA STARS II (GWAC) award.” Id.

       With respect to the technical proposal, the USDA evaluation assigned
one of five possible ratings: outstanding, good, acceptable, marginal, and
unacceptable. AR 211-12. This overall rating derived from separate ratings
of subparts within the technical proposal. The staffing plan, corporate security
plan, and transition plan each were rated either outstanding, good, acceptable,
marginal, or unacceptable. See AR 212. Past performance proposals were
assigned an overall rating of either substantial confidence, satisfactory
confidence, limited confidence, or unknown confidence. AR 213. Price
proposals were not separately rated but were reviewed “for completeness,
reasonableness, and price realism.” AR 215.

        In accordance with those ratings, USDA was to make the award based
on the quotation that “represents the best overall value to the government.”
AR 210. The RFQ also stated the following concerning price: “Although
price/cost is of less importance than the technical factors, taken as a whole, it
is a factor and must not be ignored.” Id.

       The solicitation set February 23, 2012, as the due date for proposals.
Thirty-six proposals were submitted. AR 3919-20. Separate teams evaluated
each part of the proposals. AR 3122. On May 8, 2012, the Contracting
Officer (“CO”) met with the Source Selection Team to review the ratings. AR
3123. The Source Selection Team found that 33 of the 36 proposals could be
eliminated. See AR 3123. Only Chameleon, CSSS, and another vendor
remained. Id. After addressing certain proposal concerns with the three
offerors, USDA accepted revised offers on May 21, 2012. Id.

      USDA gave CSSS and Chameleon identical ratings as to technical
proposals, including all sub-parts (outstanding) and past performance
proposals (substantial confidence). AR 1861. CSSS’s total evaluated price
was $13,771,904. Chameleon’s total evaluated price was [ ]. Id.




                                       5
        On June 30, 2012, USDA made an initial award to CSSS and sent a
letter to Chameleon notifying it of the award to CSSS. AR 3124. USDA
debriefed Chameleon on July 11, 2012. AR 2489. Chameleon then filed a
protest with the Government Accountability Office (“GAO”), alleging that it
was unreasonable to award the task order to CSSS because Chameleon
received the same technical and past performance proposal ratings but offered
nearly a [ ] price advantage. AR 2638.

        In response to the protest, USDA issued a stop work order on July 16,
2013, AR 3124, and on August 7, 2012, stated its intent to take corrective
action. AR 3591. GAO dismissed the protest as moot on August 10, 2012.
AR 3124. The agency then sent notices to the three vendors on October 2,
2012, setting out the procedures for the corrective action and the issues the
offerors should address. See id. The bidders were to further explain their
staffing plans. Specifically, CSSS and Chameleon 12 would propose how to
offer service credit for incumbent employees. They were also asked to revise
their transition plans to comply with certain requirements under the RFQ. AR
3659, 3654-55. USDA made no comment about work already done by CSSS
in the weeks between the June 30 initial award and July 16 stop work order.
AR 3659.

       USDA also conducted separate telephone discussions with CSSS and
Chameleon. AR 3125. On October 3, 2012, the agency spoke with CSSS.
CSSS took notes at the meeting that indicate the conversation started at 11:00
a.m. AR 3661. CSSS asked the CO if the vendor that protested at GAO
(whose identity was unknown to CSSS) had been furnished with CSSS’s price
during the debriefing on the first award. Id. The CO responded, “Yes.” Id.
CSSS then asked if vendors would be permitted to reduce prices in the next
round of offers. USDA affirmed that price reductions were allowed.
According to notes taken during the discussions, a representative of CSSS
remarked, “[o]ur concern is that they know our price.” Id. The agency
responded, “[o]n the last requirement, you were not the lowest price, or second
lowest price.” Id. It is undisputed that there were only three offerors at that
point.

      Chameleon representatives spoke with the agency that same day. AR
3656. According to notes written during that telephonic conference, a



12
     We have omitted details about the third offeror as irrelevant.

                                         6
Chameleon official asked, “[c]an you tell me if Chameleon pricing was
disclosed?” Id. The CO answered “no, it was not.” Id.

       Revised bids were due by October 5, 2012. AR 3124. All three
vendors submitted timely bids, AR 3125, and USDA then reevaluated the
proposals. AR 3741. The ratings of both Chameleon and CSSS held constant
on the technical proposal: outstanding for the overall rating and sub-ratings.
AR 3746, 3750. No comment was made about any transition activities
performed by CSSS between the initial award date and the stop work order.
AR 3750-53. Both companies received a rating of substantial confidence for
their past performance rating. AR 3845.

       Prices changed significantly, however. Chameleon raised its total
evaluated price to [ ]. Id. CSSS cut its price to $12,845,843. Id. In once
again recommending selection of CSSS, the Source Selection Authority found
that the company’s proposal “was the lowest priced proposal of the most
highly rated offerors and is the most advantageous to the Government.” AR
3842.

       USDA awarded the task order to CSSS on October 31, 2012, and
notified each offeror. AR 3125. Chameleon filed a second protest at GAO on
November 9, 2012. AR 3127. It alleged, inter alia, that the award to CSSS
was unreasonable because USDA informed CSSS that two other vendors had
submitted lower prices, while at the same time telling Chameleon that its
pricing had not been disclosed. See AR 4103-04.

        On February 15, 2013, GAO denied Chameleon’s protest. AR 4100.
GAO found that it was proper for USDA to tell CSSS where it ranked in
relation to other vendors because, at that point, Chameleon had CSSS’s actual
price. The USDA therefore “merely leveled the playing field.” AR 4104
(citing Ocean Servs., LLC, B-292511.2, 2003 CPD ¶ 206 at 5 (Comp. Gen.
Nov. 6, 2003). USDA also “did not mislead Chameleon,” because
“Chameleon only asked whether its specific price had been disclosed to the
awardee.” Id.

       After GAO lifted the stay on performance of work, the CO held a
meeting with CSSS on February 20, 2013, to discuss transition matters. AR
1873. The notes from that meeting indicate that the CO made comments about
the “last transition,” AR 1862, i.e., the brief period of performance between
the original award to CSSS and the first stay of the task order. According to


                                      7
the notes, the transition “[   ].” Id. Other notes taken from that meeting
indicate the following comments made, presumably, by the CO: “Want to
discuss Transition[,] CSSS intent [and] how to proceed . . . [ ].” AR 1874.
The notes also indicate comments about an incumbent list. One note states,
“Get Incumb[ent] List to CSSS.” Id. Another states, “we don’t have a list.”
AR 1862.

        On February 26, 2013, plaintiff filed its complaint here. Plaintiff has
two arguments. The first concerns the relative positions of the bidders with
respect to their knowledge about each others’ prices. Plaintiff contends that,
although Chameleon knew CSSS’s exact initial price, the agency’s statement
that it had not given the same information to CSSS about Chameleon’s bid
confused plaintiff in that it was left with the impression that CSSS knew
nothing about Chameleon’s price, whereas, in fact, the intervenor knew that
it was the highest of three bidders. Chameleon contends that the agency had
a duty to tell Chameleon about the level of CSSS’s knowledge even if plaintiff
did not ask the agency for that information. The failure to notify Chameleon
of CSSS’s knowledge constitutes unfair treatment, plaintiff asserts, because it
put Chameleon at a tactical disadvantage.

        Plaintiff also argues that USDA, in the final evaluation of technical
proposals, should have taken account of CSSS’s initial transition experience
between June 2012 and July 2012. Plaintiff construes the notes of the
February 10, 2013 meeting between CSSS and the agency as reflecting [ ].
According to plaintiff, it was therefore irrational to not comment on that
transition during the final evaluations.

                              DISCUSSION

        Defendant moves to dismiss the complaint for lack of jurisdiction. It
asserts that FASA exempts this task order award from protest. Defendant is
correct that FASA generally is an impediment to the assertion of jurisdiction
by this court over the protest of a task order. 41 U.S.C. §§ 4106(a), 4106(f)
(Supp. V 2011); see, e.g., A & D Fire Protection Inc. v. United States, 72 Fed.
Cl. 126, 133-34 (2006). In this case USDA issued an order under a pre-
existing task order contract, which appears to have been issued subject to
FASA. See 41 U.S.C. § 4103(a) (defining task order contracts); STARS II §
I.1.1 (stating that it is an indefinite delivery/indefinite quantity contract).




                                      8
       Plaintiff asserts, however, that appearances can be deceiving and that
the STARS II GWAC under which the award was issued is not a task order
contract subject to FASA. It argues that FASA applies only to “traditional task
and delivery order contracts.” Pl.’s Reply 3.13 A traditional task and delivery
order contract, according to plaintiff, involves a small number of contractors
who then bid on subsequent orders. Plaintiff cites for support the decisions in
Wildflower International, Ltd. v. United States, 105 Fed. Cl. 362 (2012), and
Solute Consulting v. United States, 103 Fed. Cl. 783 (2012). These decisions,
according to plaintiff, “involve[d] . . . one or a small handful of contractors.”
Pl.’s Reply 2. Plaintiff contends that such a scenario is fundamentally
different from a situation, such as the STARS II GWAC here, in which
hundreds of contractors obtain access to a master contract. Plaintiff points out
that STARS II is issued to “over 580 companies,” id. at 3, and further states it
is “open to any 8(a) company.” Id. at 2.

         Plaintiff contends that such mass contracting at the master contract
level is similar to the GSA Federal Supply Schedule (“FSS”) program, which
is not subject to the protest restrictions attendant to task order contracts
authorized by FASA. See, e.g., Data Mgmt. Servs. Joint Venture v. United
States, 78 Fed. Cl. 366, 371 n.4 (2007). It urges the court not to be bound by
what plaintiff believes are the agency’s gratuitous references to FAR Subpart
16.5 in the STARS II GWAC. Instead, it argues that we should ignore the
agency’s attempt to characterize what it did as pursuant to a FASA contract
vehicle and instead deem it to be some other, unidentified contracting device,
but one which is subject to the court’s bid protest jurisdiction. Plaintiff does
not, we note, contend that STARS II is an FSS contract. It would be difficult
to do so, as the services were not sought from that program.

      There is no support in statute, regulation, or case law for plaintiff’s
attempt to bracket the reach of FASA.14 The definition of task order contract


13
   “Pl.’s Reply” refers to Plaintiff’s Reply Memorandum in Support of
Plaintiff’s Motion for Judgment on the Administrative Record and in
Opposition to Defendant’s Motion to Dismiss / Cross-Motion for Judgment on
the Administrative Record.
14
  At oral argument, plaintiff raised for the first time the suggestion that, if
GWACs had been statutorily authorized before FASA was adopted, rather than
the reverse, that Congress surely would have excepted GWACs from the
                                                                (continued...)

                                       9
in section 4103 of FASA does not limit these contracts to procurements
involving a “small handful of contractors.” See 41 U.S.C. § 4103(a) (defining
task order contracts and containing no limits on the number of vendors). FAR
Subpart 16.5 parrots this definition. See 48 C.F.R. § 16.501 (2012) (“Task
order contract means a contract for services that does not procure or specify
a firm quantity of services (other than a minimum or maximum quantity) and
that provides for the issuance of orders for the performance of tasks during the
period of the contract.”).

       GWACs, moreover, are specifically embraced within FAR Subpart
16.5, which sets out rules for task order contracts. See 48 C.F.R. §
16.505(a)(8) (addressing interagency contracts, including GWACs); see also
48 C.F.R. § 2.101 (defining a GWAC as a “task-order or delivery-order
contract for information technology established by one agency for
Governmentwide use”). The assumption that follows is that the entirety of
FAR 16.505 applies to GWACs. See John Cibinic, Jr., Ralph C. Nash, Jr., &
Christopher R. Yukins, Formation of Government Contracts 1195 (4th ed.
2011) (stating that FAR 16.505 applies to orders under GWACs).

       Nor do the cases cited by plaintiff show that FASA limits itself to a
certain type of task order contract. In Solute Consulting, the Navy awarded the
order under a task order contract that had been awarded to a single entity. 103
Fed. Cl. 783, 784-85. Nothing in that case provides a basis for limiting
FASA’s application to only task order contracts with a limited number of
awardees. In Wildflower International, the court discussed whether FASA
applied to a task order in which four bids were submitted. 105 Fed. Cl. 362,
371-72. The case makes no reference to the size of the master contract, see id.
at 367-68, and does not comment on whether that would matter.

       Plaintiff cites Idea International Inc. v. United States, 74 Fed. Cl. 129
(2006), for the proposition that “FASA itself makes it clear that its task order
protest limitation only applies to traditional task and delivery order contracts.”
Pl.’s Reply 3. The language “traditional task and delivery order contracts”
does not appear in the long excerpt plaintiff quotes from that decision. The
court merely notes that GSA Schedule contracts existed before FASA was
adopted, 74 Fed. Cl. at 135, and were authorized pursuant to a completely


14
  (...continued)
limitations on protest imposed by FASA. We need not speculate on what
Congress might have done. We are limited to the statutes as written.

                                       10
different regulatory program, id. at 135-36. It also notes that FASA
specifically did not purport to affect GSA Schedule contracts. Id. at 135-36
(citing 10 U.S.C. § 2304a(g) (2000)).

        Our prior precedent shows that FASA applies broadly. In MED Trends,
Inc. v. United States, 102 Fed. Cl. 1, 2 (2011), this court analyzed the GSA
“VETS GWAC.” Although we found that the FASA protest bar did not apply
because of a sunset provision,15 we recognized: “There is no question that, had
this protest been brought one month earlier, the court would not have been able
to exercise jurisdiction.” Id. at 4; see also Enterprise Info. Servs, Inc., B-
403028, 2010 WL 3554592 at *1 n.1 (Comp. Gen. Sept. 10, 2010) (exercising
jurisdiction over the protest of an award under the predecessor to STARS II
because characteristics of the order satisfied FASA requirements); Global
Computer Enters., Inc., B-310823, 2010 WL 314520 at *3-5 (Comp. Gen. Jan.
31, 2008) (addressing a protest to the change in scope of a task order issued
under a GWAC and stating that FASA barred jurisdiction).

       Plaintiff also argues that the fact that the STARS II GWAC is
interagency in nature (with USDA as the customer and GSA as the executive
agent) makes it look like the GSA FSS program. That is true, but immaterial.
Plaintiff does not contend that the procurement here is subject to the FSS and
offers no category other than FASA under which to treat the task order.
Plaintiff fails to rebut the presumption that FASA applies to the STARS II
contract. We therefore do not have jurisdiction.

       Even if the court had jurisdiction, we would not find for plaintiff on the
merits. In bid protests the court reviews agency action and may overturn an
award if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(a) (2012). Plaintiff must show that
the award lacked a rational basis or that the award violated a regulation or
procedure. Axiom Res. Mgmt. Inc. v. United States, 564 F.3d 1374, 1381 (Fed.
Cir. 2009).



15
  See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No.
110-181, § 843, 122 Stat. 3, 236-39 (2008) (codified at 41 U.S.C. § 4106(f)
(Supp. IV 2010)). FASA’s protest bar was restored by the National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 813, 125 Stat.
1298, 1491 (2011) (codified at 41 U.S.C. § 4106(f) (Supp. V 2011)). See
Wildflower Int’l, 105 Fed. Cl. at 372-75 (discussing both acts).

                                       11
        Plaintiff argues that it was unreasonable for USDA to tell CSSS that its
price was lower than two other offerors while failing to tell the other vendors
that USDA had disclosed that information. The agency, of course, had already
furnished Chameleon with CSSS’s actual bid and attempted to level the
playing field, as pointed out by GAO, by giving some comparable information
to CSSS. Plaintiff asserts, however, that, at that point, CSSS had a tactical
advantage over it, not because it had more information about plaintiff’s initial
price, but because plaintiff was under the false impression that CSSS knew
nothing about the relative positions of the bidders’ prices. Presumably,
believing that CSSS was in total ignorance of Chameleon’s own
circumstances, Chameleon felt the liberty to raise its price substantially, given
the initial difference in bids. What this means, of course, is that plaintiff had
no reluctance to take advantage of what it must have thought was its own
superior knowledge, namely, CSSS’s actual price. According to plaintiff,
USDA had an affirmative duty, not merely to answer the question put to it by
plaintiff, but to go further and make certain plaintiff was not laboring under
some unexpressed false assumption about the level of CSSS’s knowledge.

        We disagree. Because Chameleon knew CSSS’s exact price, USDA
initially tried to properly level the playing field. See DGS Contract Serv., Inc.
v. United States, 43 Fed. Cl. 227, 238 (1999) (holding that an agency may
correct “any competitive advantage obtained” by an offeror’s obtaining more
information than other vendors).16 When Chameleon asked USDA whether its
“pricing” had been disclosed, AR 3656, it was not irrational for the agency to
assume that “no” was an accurate response. The CO certainly was not
obligated to volunteer more than what was literally asked.

       Plaintiff’s second argument on the merits deals with the brief transition
period after the initial award to CSSS and prior to the first GAO protest, June
2012 to July 2012. According to plaintiff, agency notes indicate that CSSS [
  ]. The notes upon which plaintiff relies are the April 2013 transition meeting
notes taken during a meeting between the CO and CSSS. Those notes state
that CSSS “[      ].” AR 1862, and that “[       ].” AR 1874. At the time that
USDA conducted the corrective action and last evaluation, plaintiff asserts,


16
  We note that DGS Contract Service applied FAR Subpart 15.5 and not FAR
Subpart 16.5, which applies here. Notions of fundamental fairness apply to all
procurements, however. See 48 C.F.R. § 1.602-2(b) (stating that a contracting
officer must “[e]nsure that contractors receive impartial, fair, and equitable
treatment”).

                                       12
USDA must have had the same information. Plaintiff argues that USDA had
a duty to apply this past performance information and downgrade CSSS’s
proposal. Pl.’s Reply 9 (citing Vanguard Recovery Assistance v. United States,
101 Fed. Cl. 765, 781 (2011)). Failure to take account of that information was
irrational, according to plaintiff.

       We disagree. These notes are vague and oblique criticisms at best and
certainly offer no clear evidence that CSSS was somehow not performing
properly. As defendant and intervenor point out, this initial performance
period was very short and no doubt affected by the prompt filing of the GAO
protest and its accompanying stop work order. The comments give us no basis
for concluding that the agency’s final evaluation lacked a rational basis.

                              CONCLUSION

        We therefore grant defendant’s motion to dismiss, deny plaintiff’s
motion for judgment on the administrative record and deny intervenor’s cross-
motion for judgment on the administrative record as moot. The Clerk of Court
is directed to dismiss the complaint with prejudice. No costs.


                                          s/Eric G. Bruggink
                                          ERIC G. BRUGGINK
                                          Judge




                                     13
