      In the United States Court of Federal Claims
                                No. 16-1569C
                      (Originally filed: March 15, 2017)
                          (Reissued: May 5, 2017)1

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

TETRA TECH, INC.,
                                                        Post-Award Bid Protest;
              Plaintiff,                                Scope of Work; Work
                                                        Assignment.
v.

THE UNITED STATES,

              Defendant,

and

EASTERN RESEARCH GROUP, INC.,

              Defendant-Intervenor.

********************
      Holly A. Roth, Washington, DC, with whom were Lawrence P. Block,
Elizabeth G. Leavy, Molly Q. Campbell, and Sarah S. Wronsky, Washington,
DC, for plaintiff.

       Kristin B. McGrory, Trial Attorney, Commercial Litigation Branch,
Civil Division, Department of Justice, Washington, DC, for defendant, with
whom were Chad A. Readler, Acting Assistant Attorney General, Robert E.
Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director. Maria S.
Kavouras, Office of General Counsel, United States Environmental Protection
Agency, Cincinnati, Ohio, of counsel.

       John G. Horan, Washington, DC, for intervenor.



1
  This opinion was originally issued under seal pursuant to the protective order
entered in this case. The parties conferred and proposed appropriate redactions of
protected information. Those redactions are indicated herein with brackets.
                             _______________

                                OPINION
                             _______________

BRUGGINK, Judge.


       Plaintiff, Tetra Tech, Inc., protests the United States Environmental
Protection Agency’s (“EPA”) issuance of work assignment number 2-10,
Long-term Stormwater and Wastewater Planning Technical Assistance (the
“Stormwater Work Assignment”) to intervenor, Eastern Research Group, Inc.
(“ERG”), for the provision of stormwater and wastewater planning technical
assistance. The Stormwater Work Assignment was issued to ERG under
contract EP-C-14-014 (the “prime contract”). Plaintiff alleges that EPA
violated the Competition in Contracting Act (“CICA”), 41 U.S.C. § 3301
(2012), when it issued the Stormwater Work Assignment because it materially
departed from the scope of the original procurement for the prime contract,
thereby requiring full and open competition.

       Plaintiff further alleges that the work assignment under this prime
contract looks suspiciously like work which plaintiff was performing on a
completely separate contract, the renewal of which is the subject of a separate
bid protest between the same parties. Plaintiff argues that EPA violated the
voluntary stay in place in that other bid protest when it issued the Stormwater
Work Assignment. See Tetra Tech, Inc. v. United States, Fed. Cl. No. 16-775
(the “16-775 protest”). In the 16-775 protest, plaintiff, there the incumbent
contractor, challenges EPA’s technical evaluations of both its and ERG’s
proposals and the subsequent award of the contract at issue (the “16-775
follow-on contract”) to ERG. EPA agreed to a voluntary stay of the 16-775
follow-on contract in the 16-775 protest. It appears that the Stormwater Work
Assignment could properly be issued under the 16-775 follow-on contract, and
plaintiff argues that the stay has been violated by EPA’s use of an improper
contract vehicle to award the work to ERG. Our rejection of plaintiff’s
complaint in that related case is being issued simultaneously herewith.

       The parties have cross-moved for judgment on the administrative
record. Plaintiff asks the court to permanently enjoin ERG from performing
the Stormwater Work Assignment under the prime contract. Oral argument
was held on February 17, 2017. Because we find that the Stormwater Work

                                      2
Assignment was within the scope of the prime contract’s Performance Work
Statement (“PWS”), we deny plaintiff’s motion and grant defendant’s and
intervenor’s cross-motions for judgment on the administrative record.

                              BACKGROUND

        In November of 2013, EPA issued a request for proposals (the “RFP”
or the “solicitation”), seeking bids for the prime contract. The prime contract
was a follow-on contract to EP-C-09-008, which was held by ERG and set to
expire on February 13, 2014. The prime contract’s stated objective was to
“provide support services for the EPA’s WaterSense program and other water
efficiency efforts” through work assignments to be issued by the contracting
officer in accordance with the PWS. AR 293. Funding for the work
assignments were to be added through modifications as needed throughout the
course of the contract.

        The WaterSense program, launched in 2006, is “a voluntary public-
private partnership program that seeks to protect the future of the nation’s
water supply by promoting water efficiency and enhancing the market for
water-efficient products, services, systems, and practices.” Id. The program
helps consumers identify water-efficient products and programs, including
high-efficiency toilets, weather-based irrigation controllers, and newly
constructed homes, through its labeling program which indicates that the
product or program meets or exceeds certain water-efficiency and performance
criteria. The services that the contractor provides in support of the WaterSense
Program and other water efficiency efforts under the prime contract include
“(1) Market and Technical Research and Analysis, (2) Program Support and
Implementation, (3) Marketing, Communications, and Promotional Support
and (4) Support for Water Management and Sustainability Efforts.” Id.

        The solicitation was for a cost-reimbursement term contract with a 12-
month base period followed by four 12-month option periods. Each year, EPA
intended the contractor to perform 29,000 hours of work, but the agency would
have the option to order an additional 10,000 hours per period. Spanning 14
pages in total, section 3.0 of the PWS presented the scope of work that could
be required of the contractor. The scope of work was broken down into four
subcategories: 3.1 Market and Technical Research and Analysis; 3.2 Program
Support and Implementation; 3.3 Marketing, Communications, and
Promotional Support; and 3.4 Support for Water Management and
Sustainability Efforts. Sections 3.1, 3.2, and 3.3 were further broken down

                                       3
into numerous, tertiary subcategories.

       Section 3.1 states that

       Market and technical research and analysis are vital to the
       success of the WaterSense program. This includes both an
       ongoing, general inquiry into the water-efficiency field, as well
       as more detailed research into potential areas for WaterSense
       labeling, targeting, or involvement. This market and technical
       research and analysis will support the EPA’s decisions regarding
       the program’s strategic direction (see section 3.2) and
       specification development (see section 3.1.3).

Id. Section 3.1.1 states that “[a]s a broad, ongoing activity, the contractor shall
be expected to perform research into water efficiency in general. This research
includes information on the current state of water-efficient technology, impacts
of water efficiency, calculators and other tools, and sector analysis.” AR 293-
94.

       Section 3.2 provided that

       Watersense is a partnership program sponsored by the EPA that
       is designed to protect the future of our nation’s water supply by
       promoting and enhancing the market for water-efficient
       products, new homes, and professional certification programs.
       The contractor shall support the EPA in the development and
       implementation of a program that is creative, relevant, and
       informative in meeting the needs of partners, allies,
       stakeholders, and the public. The contractor shall proactively
       provide recommendations on program structure and direction,
       as well as support in the implementation of those
       recommendations.

AR. 297. Section 3.2 of the PWS includes nine subtasks, which focus
predominately on implementation and support for the WaterSense program.
For example, section 3.2.2 explains that recruiting and supporting partners is
a key aspect of the WaterSense program and that, to that end, the contractor
would be required to “[d]evelop and implement a strategic approach to
recruiting new partners through mailings, meetings/conferences, etc; . . .
[s]upport, as appropriate, the completion and submission of partnership

                                         4
agreements; . . . and [m]aintain a means of tracking all products, programs,
practices, or systems that may be considered for inclusion in the program. . .
.” AR 298-299. Section 3.2.4 of the PWS further instructed that the
“contractor shall continue to develop and modify the WaterSense website to
ensure that it is up-to-date with respect to developments in the program.” AR
299. Section 3.2.7 notes that the program may engage in interagency efforts,
and states that “the contractor shall be able to provide support on water
efficiency issues associated with other sectors, including industrial, energy,
and agriculture.” AR 302.

       Section 3.3 of the PWS described the following work to be performed:

       Given that WaterSense is voluntary in nature, marketing and
       outreach are critical to the program’s success. These activities
       serve to attract partners, establish and promote the WaterSense
       brand, and build interest and credibility among consumers and
       other end users. As the EPA is developing strategies for
       marketing and promoting the WaterSense program, the
       contractor shall provide general marketing and communications
       guidance, expertise, and support.

AR 303. Section 3.3 included seven subtasks that further elaborated what was
required of the contractor with respect to general marketing and
communications support for the WaterSense program.

       Section 3.4, the pivotal section for this case, discussed potential work
outside of the WaterSense program. Considerably shorter than the previous
three sections, section 3.4, in full, provided for the following work:

       Provide support for water management and sustainability
       programs. This includes general research and detailed analysis
       in the areas of water conservation, efficiency, and reuse,
       particularly with respect to utility operations. Contractor support
       and research may include, but is not limited to:

       a. Contribution to the development of the strategic direction of
       agency water management efforts by providing analysis,
       recommendations, and planning documents.
       b. Development of tools and guidance to assist water utilities in
       water management and water reuse programs.

                                       5
       c. Development and/or assessment of water use efficiency
       metrics and benchmarks.
       d. Identification and development of technological and
       behavioral approaches that will promote sustainable water
       management.
       e. Providing regular management reports to track program
       progress.

AR 306.

        The solicitation stated that EPA would award the contract to the offeror
whose offer was most advantageous to the government with more weight given
to the technical evaluation factors than cost. The solicitation listed eight
criteria that EPA would use to “evaluate [an] offeror’s technical proposal
submitted to fulfill the requirements of the Performance Work Statement.” AR
155. Listed in descending order of importance, the eight criteria included 1)
Demonstrated Qualifications and Availability of Key Personnel, 2) Adequacy
of Past Performance, 3) Technical Approach, 4) Demonstrated Corporate
Experience, 5) Adequacy of Program Management Plan, 6) Small
Disadvantaged Business Plan, 7) Adequacy of Quality Management Plan, and
8) Adequacy of General Security Plan for Confidential Business Information.

       While fleshing out the technical evaluation criteria, the RFP makes a
number of general references to the need to show experience or capability with
respect to the type of work in the PWS. The RFP also makes specific
references to sections 3.1, 3.2, and 3.3. For example, the Demonstrated
Qualifications and Availability of Key Personnel criterion is further broken
down into a “Program Manager” section and a “Project Leaders” section,
which included three project leaders: Engineering, Program Administration,
and Marketing/Branding. Offerors were instructed to address the Engineering
Project Leader’s “knowledge of auditing and assessment procedures in
accordance with the type of work specified in the PWS Section 3.1.” AR 146.
Offerors were also asked to demonstrate their Program Administration Project
Leader’s “knowledge of the tools and methods necessary to support [the]
program . . . in accordance with the type of work specified in the PWS Section
3.2,” which focuses predominately on implementation and support for the
WaterSense program. AR 147. Finally, offerors were also asked to
demonstrate their Marketing/Branding Project Leader’s “experience in the
communication and promotional support of a similar scale water or voluntary
partnership program” and “competency in developing and managing

                                       6
campaigns and outreach materials in accordance with the type of work
specified in the PWS Section 3.3” Id.

       The solicitation’s technical evaluation criteria do not make a similar,
direct reference to section 3.4 of the PWS. This fact was discussed in an
amendment to the solicitation on November 25, 2013, which included answers
to technical questions posed by the offerors to EPA. Two questions were posed
to EPA regarding the absence of a specific reference to section 3.4 in the
technical evaluation criteria.

       QUESTION: Attachment 9, III Technical Approach mentions
       PWS 3.1 Market and Technical Research and Analysis, 3.2
       Program Support and Implementation, and 3.3 Marketing,
       Communications, and Promotional Support. The PWS includes
       3.4 Support for Water Management and Sustainability Efforts.
       Should PWS 3.4 be addressed in the Technical Approach? If so,
       what are the technical evaluation instruction and criteria for this
       task?

       ...

       QUESTION: The key staff includes a Program Manager and
       three Project Leaders to support PWS 3.1, 3.2, and 3.3. Should
       the technical proposal include a Project Leader for PWS 3.4?

AR 310. Both questions received the same answer: “This is the offeror’s
business decision on what to include in their proposal but must propose in
accordance with the solicitation.” Id.

       ERG submitted its proposal on January 7, 2014. ERG’s proposal largely
focused on its ability to provide support for the WaterSense program. In its
cover letter, ERG stated that it “welcome[d] this opportunity to provide EPA
with the same high level of technical expertise, responsiveness, and creativity
that has characterized our work under our current contract to support EPA’s
WaterSense® program.” AR 318. ERG assured EPA that it was “aware of
EPA’s water efficiency program requirements and [was] committed,
throughout [its] entire proposed team, to meeting those requirements on time
and within budget.” AR 281. In its technical proposal, ERG addressed both the
WaterSense program and ERG’s capability to perform the tasks in sections 3.1,
3.2, and 3.3 in great detail. Compared to the other sections, ERG gave very

                                       7
little attention to section 3.4, but it did address the section in its proposal.
Specifically, ERG provided an example of how its program manager “worked
closely with agencies and water utilities to explore municipally treated water
reuse opportunities.” AR 334. ERG also addressed section 3.4 while
discussing its technical approach, saying that its team is [

                                                           ]. AR 405.
ERG also noted its proposed team’s “70 years of combined experience
providing water management and sustainability support for large utility
programs.” Id.

       EPA awarded the prime contract to ERG on July 18, 2014. Together,
the base year and all option years had a total value of roughly $18.4 million.
Consistent with the solicitation, the contractor would “ perform work under
[the] contract as specified in written work assignments issued by the
Contracting Officer.” AR 852.

       On October 11, 2016, EPA issued the Stormwater Work Assignment
under section 3.4 of the prime contract. The Stormwater Work Assignment
included the following Background/Objective section:

              Urban stormwater continues to be a growing source of
       water pollution, carrying pollutants and bacteria that can impact
       public health and causing and extensive flooding, property
       damage and habitat destruction. It also can overwhelm
       wastewater systems and overflow sewers, impeding
       communities’ efforts to provide the reliable services that the
       public expects from their water infrastructure. . . .
       [M]unicipalities are working hard to communicate the value of
       their water resources and their efforts to protect them. They are
       looking for better ways to make smart infrastructure investments
       and improve community resiliency through sustainable, multi-
       benefit practices like green infrastructure.

       EPA is looking at ways to help communities make strategic,
       long-term investments in their wastewater and/or stormwater
       systems that yield strong environmental results. . . .

       EPA plans to set forth a cohesive narrative for good stormwater
       management that conveys the elements EPA would look for in

                                       8
      a community’s long-term plan for stormwater. . . . These
      stormwater concepts can be used as part of integrated planning
      approaches or separately. The scope of an integrated plan can
      cover separate stormwater and wastewater systems or any
      combination of systems depending on the community’s needs
      and objectives. . . .

      This work assignment will include supporting technical
      assistance projects with up to five communities. The technical
      assistance will include meetings with communities, permitting
      authorities, and other federal, state, and local stakeholders.
      Support will be provided to communities as they develop draft
      long-term stormwater plans and engage in analyses and
      evaluations necessary to assess long-term stormwater and
      wastewater planning options in their communities. Ultimately a
      public outreach report will be developed for each technical
      assistance project that describes the project and highlights how
      the example, tool, or process can be applied to or implemented
      in the selected community as well as other communities.

      As part of this technical assistance, communities will be “beta
      testing” the new stormwater planning concepts and a toolkit (to
      be shared by EPA), so support may also be needed in compiling
      comments from the beta testing and identifying opportunities to
      improve the tool. In addition, references and resource
      gaps/needs may be identified during the beta testing and the
      contractor may be asked to research possible tools and
      references that could be added to the toolkit in the future.

AR 1302-03.

       In order to carry out the stated objectives, the Stormwater Work
Assignment PWS listed a number of tasks for ERG to perform. Specifically,
the contractor was required to prepare a detailed work plan and budget and
provide monthly progress and financial reports to EPA. The Stormwater Work
Assignment PWS also required that all the environmental data used be
supported by an approved quality assurance project plan. The meat of the
work assignment was to be carried out under “Task 1 - Technical Assistance
Support.” AR 1304. This task provided that the contractor would “provide
technical support based on stormwater planning concepts and the Integrated

                                     9
Planning Framework for five community partners.” Id. The technical support
task contained the following five subtasks, which are briefly described below:
Meeting Support, Technical Analyses, Public Outreach Reports, Quick Turn-
around Research and Technical Support Activities, and Communications
Support.

       For the Meeting Support task, the Stormwater Work Assignment PWS
instructed that the “contractor shall prepare meeting agendas and submit for
EPA review and approval 2 weeks prior to the meeting and deliver draft
meeting notes as directed by the EPA [work assignment contracting officer
representative (“WACOR”)] for calls and meetings held with technical
assistance communities and/or other stakeholder groups.” AR 1304-05.

         The Technical Analyses task required the contractor to “support
technical analyses of stormwater and/or wastewater solutions,” including
analyses related to “identifying goals of long-term stormwater planning efforts
. . . examining alternatives . . . and improving the long-term stormwater plan”
among other areas. AR 1305. The task description goes on to describe that
“[s]pecific analyses could include analyzing stormwater and/or wastewater
challenges and suggesting design alternatives; evaluating stormwater design
strategies; . . . optimizing green infrastructure; [and] . . . reviewing permit
requirements” among other areas. Id.

       For the Public Outreach Reports task, the Stormwater Work
Assignment PWS stated that the “contractor shall develop a public outreach
report or document for EPA for each technical assistance project that describes
the project and highlights how the example, tool, or process can be applied to
or implemented in the selected community as well as other communities.” Id.

        Under the Quick Turn-around Research and Technical Support
Activities task, the contractor could be “asked to support quick turn-around
tasks from time to time to assist EPA in responding to inquiries from
management, technical assistance communities, and others.” AR 1306.
Deliverables under this subtask would be task-specific but could include “an
email summarizing research findings on a certain topic, fact sheets, data tables
summarizing information, . . . PowerPoint slides and/or graphics for meetings
and presentations, and summaries of feedback from communities on the
toolkit.” Id.



                                      10
       Finally, for the Communications Support task, the contractor would be
required to “provide support in developing communications materials such as
graphics for [the] website, social media graphics, logo work, infographics, or
fact sheets.” Id.

       On October 27, 2016, EPA approved amendment 1 to the Stormwater
Work Assignment, which made minor revisions to the PWS without increasing
the level of effort.2 That same day, EPA issued a press release regarding the
Stormwater Work Assignment which discussed the work to be performed. The
press release announced the EPA’s provision of “a step-by-step guide to help
communities develop long-term stormwater plans, a web-based toolkit for the
planning process, and technical assistance for five communities to develop
plans as national models.” AR 1792. The release also identified the “five
communities selected for $150,000 each in technical assistance to develop
long-term stormwater management plans.” Id. Plaintiff then filed suit on
November 23, 2016.

                                DISCUSSION

        We have jurisdiction to render judgment on “an action by an interested
party objecting to . . . any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.” 28 U.S.C. §
1491(b)(1) (2012). Plaintiff alleges that the government violated CICA, 41
U.S.C. § 3301, when it issued the Stormwater Work Assignment without full
and open competition. In order to have standing, plaintiff must show that it is
an “interested party” within the meaning of § 1491(b)(1). Plaintiff alleges that
it is capable of performing the services acquired under the Stormwater Work
Assignment and that it would have bid on the project if it were open to
competitive bidding. We are satisfied that plaintiff has standing to bring the
present action.

       Our review is limited to the existing administrative record generated in
connection with the procurement. See RCFC 52.1. We review agency action
in the bid protest context under the deferential standards of administrative
review borrowed from the Administrative Procedures Act. See 28 U.S.C. §
1491(b)(4) (2012). EPA’s actions can be enjoined only if we find them to have
been “arbitrary, capricious, an abuse of discretion, or otherwise not in

2
  Among other changes, the amendment increased the number of communities to be
assisted from four to five.

                                      11
accordance with the law.” 5 U.S.C. § 706(2)(A) (2012). The protestor bears
the burden of establishing that the agency’s decision lacked a rational basis or
was otherwise in violation of applicable law or regulation. See Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332
(Fed. Cir. 2001).

       Plaintiff asks this court to permanently enjoin ERG’s performance of
the Stormwater Work Assignment, which was issued to ERG under the prime
contract. In deciding whether a permanent injunction should issue, this court
considers “(1) whether . . . plaintiff has succeeded on the merits of the case;
(2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective parties
favors the grant of injunctive relief; and (4) whether it is in the public interest
to grant injunctive relief.” PGBA, LLC v. United States, 389 F.3d 1219, 1228-
29 (Fed. Cir. 2004).

       We will first address the merits of plaintiff’s claim. The primary
argument in plaintiff’s case is that EPA violated CICA by procuring services
from ERG without the necessary competition. CICA demands “full and open
competition through the use of competitive procedures.” 41 U.S.C. §
3301(a)(1). This requirement should not be avoided by using the device of a
contract modification. See AT&T Commc’ns v. Wiltel, Inc., 1 F.3d 1201, 1204
(Fed. Cir. 1993); CCL, Inc. v. United States, 39 Fed. Cl. 780, 791 (1997).
Modifying the contract so that it materially departs from the scope of the
original procurement violates CICA by preventing potential bidders from
competing for what should be a new procurement. See AT&T, 1 F.3d at 1205;
VMC Behavioral Healthcare Serv. v. United States, 50 Fed. Cl. 328 (2001).

        To determine whether a modification is within the scope of the original
solicitation, the court must compare the contract, as modified, with the scope
of the competition conducted to achieve the original contract. See AT&T, 1
F.3d at 1205. Several factors may be considered. We will focus our analysis
on whether the Stormwater Work Assignment materially departs from the
scope of the prime contract, and whether potential offerors could have
reasonably anticipated that stormwater management services were within the
scope of the prime contract’s solicitation.

       Plaintiff contends that the Stormwater Work Assignment amounted to
a cardinal change to the prime contract, thereby requiring full and open
competition. According to plaintiff, the prime contract’s PWS did not

                                        12
encompass stormwater management services. To support its position, plaintiff
directs the court’s attention to the “Background” section of the PWS, which
discusses the WaterSense program, its goals, and the possibility of adding new
partnership categories to the program. Plaintiff also points out that, by its
count, the PWS mentions “WaterSense” at least 64 times, “Water Efficiency”
15 times, but “stormwater” does not appear anywhere in the PWS. See Pl.’s
Mot. for J. on the AR 25. Thus plaintiff concludes that the use of the term
“water management” in section 3.4, when read in the context of the prime
contract as a whole, does not include stormwater management services. In fact,
plaintiff argues that “[t]he context of the contract’s requirements demonstrates
a clear intent for the contractor to perform services to support the WaterSense
program alone.” Pl.’s Reply 8.

        In an effort to drive home its argument that the Stormwater Work
Assignment is outside the scope of the prime contract, plaintiff goes to great
lengths to draw a distinction between the WaterSense program and water
efficiency, on the one hand, and stormwater management on the other. Plaintiff
quotes the PWS to define the WaterSense program as “a voluntary public-
private partnership program that seeks to protect the future of the nation’s
water supply by promoting water efficiency and enhancing the market for
water-effcient products, services, systems, and practices.” AR 293. Thus,
plaintiff describes the WaterSense program and water efficiency as quantity-
focused efforts by EPA to encourage consumers to reduce water consumption.
In contrast, stormwater management is exclusively focused on water quality,
predominately concerning the removal of pollutants that stormwater runoff
collects as it flows over land and other surfaces, plaintiff argues. Plaintiff
contends that, given the difference in focus, no potential bidder would have
expected the Stormwater Work Assignment to fall within the scope of the
solicitation.

        Continuing its argument relating to the expectations of potential
bidders, plaintiff also points to the fact that PWS section 3.4 was not expressly
mentioned in the solicitation’s technical evaluation criteria. This stands in
direct contrast to sections 3.1, 3.2, and 3.3, which predominately relate to the
WaterSense program and were required to be addressed in an offeror’s
technical proposal. Plaintiff further notes that, while ERG did address section
3.4 in its technical proposal, it did not directly mention its capability to
perform support services related to stormwater management. Thus, according
to plaintiff, ERG itself did not anticipate the possibility of a work assignment
including stormwater support services.

                                       13
        In response, defendant and intervenor argue that the prime contract was
elastic enough to include stormwater support services. Specifically, they argue
that the language of PWS section 3.4 proves that the contract was not limited
to the WaterSense program and alerted potential offerors that they could be
asked to provide services in support of other water management programs.
They also stress that the issuance of the Stormwater Work Assignment did not
change the price of the prime contract, its period of performance, or the type
of services to be provided, classic examples of an out-of-scope change.

        While it is a close question, we conclude that the Stormwater Work
Assignment did not materially depart from the scope of the original
procurement, and as a result, EPA did not violate CICA by issuing that work
under the prime contract. The listed objective of the prime contract’s PWS
states that “the contractor shall provide support services for the EPA’s
WaterSense program and other water efficiency efforts, including . . . (4)
Support for Water Management and Sustainability Efforts.” AR 293. Support
for water management and sustainability efforts is the caption for section 3.4
of the PWS. Section 3.4 clarifies that this “includes general research and
detailed analysis in the areas of water conservation, efficiency, and reuse.” AR
306. Section 3.4 further states that this work could involve assistance with
“the development of the strategic direction of agency water management
efforts by providing analysis, recommendations, and planning documents. . .
. [and the i]dentification and development of technological and behavioral
approaches that will promote sustainable water management.” Id.

        We are satisfied that the language in section 3.4 of the prime
contract—the stated authority for the Stormwater Work Assignment—can
permissibly include stormwater management support services. To begin with,
a plain reading of section 3.4 reveals that the solicitation and the resulting
contract were not intended to be limited to services exclusively in support of
the WaterSense program. While plaintiff is correct that the bulk of the
contract concerns the WaterSense program, EPA expressly reserved the right
to order work for other water management and sustainability efforts through
section 3.4. As plaintiff quotes in its reply, an “interpretation that gives
meaning to all parts of the contract is to be preferred over one that leaves a
portion of the contract useless, inexplicable, void, or superfluous.” NVS Techs.
Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); See Pl.’s Reply 8
(quoting the same). If section 3.4, which makes no mention of the WaterSense
program, did not contemplate work for other water management efforts, it is

                                      14
difficult to see why that language would have been included in the contract.
We also agree with intervenor that EPA’s use of the plural “programs” and
“water management efforts” was no accident. Given that we find section 3.4
permits work to be ordered in support of water management efforts outside the
WaterSense program, plaintiff’s arguments attempting to draw a distinction
between stormwater management and the WaterSense Program/water
efficiency are unavailing.

       We also find that the Stormwater Work Assignment was “of a nature
which potential offerors would have reasonably anticipated” based upon the
language of the solicitation. AT&T, 1 F.3d at 1207 (quoting Neil R. Gross &
Co., B-237434, 90-1 CPD ¶ 212 at 2-3 (Feb. 23, 1990), aff’d on
reconsideration, B-237434.2, 90-1 CPD ¶ 491 (May 22, 1990)). Under section
3.4, EPA alerted all potential offerors that it could order work including, but
“not limited to . . . the development of the strategic direction of agency water
management efforts.” AR 306. It is not a stretch to say that a potential offeror
could anticipate that “agency water management efforts,” plural, would
include stormwater management. Id.

        The fact that the solicitation did not expressly require offerors to
address section 3.4 in their technical proposals, while not irrelevant, does not
change our conclusion. As discussed above, the offerors asked EPA how
section 3.4 should be addressed in their technical proposals, if at all, and if
they should include a project leader for the section. EPA informed the offerors
that it was their business decision to decide what to include in their proposal.
Plaintiff’s line of argument with respect to ERG’s technical proposal not
including a reference to stormwater management directs the court’s attention
away from our primary inquiry, which is “whether the modification is of a
nature which potential offerors would reasonably have anticipated.” AT&T, 1
F.3d at 1207. This is an objective determination, viewed from the perspective
of potential bidders for the first procurement—not from the perspective of
ERG. See CCL, 39 Fed. Cl. at 791 (1997). While bidders’ expectations may
be informed by the requirements of the technical proposal, leaving the decision
of whether to address section 3.4 to the offerors’ business judgment did not
change the fact that EPA could still award work under that section.

       We also note that, as defendant and intervenor argue, the deliverables
ordered in the Stormwater Work Assignment are consistent with the type of
services discussed in section 3.4 of the PWS. For example, the Stormwater
Work Assignment requires ERG to provide analysis related to “identifying

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goals of long-term stormwater planning efforts . . . examining alternatives . .
. and improving the long-term stormwater plan.” AR 1305. This plausibly
connects to section 3.4, which, in relevant part, asks ERG to provide support
and research, including “[c]ontributi[ng] to the development of the strategic
direction of agency water management efforts by providing analysis,
recommendations, and planning documents,” and the “[i]dentification and
development of technological and behavioral approaches that will promote
sustainable water management.” AR 306. While it may not be much greater
in size than a fig leaf, section 3.4 provides sufficient coverage.

        Finally, plaintiff also alleges that the award of the Stormwater Work
Assignment violated the voluntary stay of the 16-775 follow-on contract that
the parties agreed to in the 16-775 protest. We disagree. To begin with, we
note that such a claim should have been raised in the other protest. In any
event, EPA did not violate the stay. The agency issued the stormwater work
through the prime contract and, as a result, did not use any funds from the 16-
775 follow-on contract. The scope of the voluntary stay does not include all
work assignments that an agency could possibly issue under that contract.
Such a rule would be unworkable for the agencies and invite unnecessary
litigation. We hold that EPA did not violate the voluntary stay when it chose
an appropriate, unrestricted contract vehicle through which to issue the
Stormwater Work Assignment.

                               CONCLUSION

        Plaintiff has failed to show success on the merits. Thus we need not
consider the other factors required for injunctive relief. Accordingly, we deny
plaintiff’s motion for judgment on the administrative record and grant
defendant’s and intervenor’s cross-motions for judgment on the administrative
record. The clerk’s office is directed to enter judgment for defendant. No costs.



                                            s/ Eric G. Bruggink
                                            ERIC G. BRUGGINK
                                            Senior Judge




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