        In the United States Court of Federal Claims
                             No. 16-81C (BID PROTEST)
          (Filed Under Seal: November 23, 2016 | Reissued: January 3, 2017)*


                                  )               Keywords: Bid Protest; Solicitation
    STRATEGIC BUSINESS SOLUTIONS, )               Requirements; Redaction; Negotiated
    INC.,                         )               Procurement; Non-Conforming
                                  )               Proposal; Minor Informality or
                    Plaintiff,    )               Irregularity.
                                  )
          v.                      )
                                  )
    THE UNITED STATES OF AMERICA, )
                                  )
                    Defendant.    )
                                  )

Christopher E. Brown, The Brown Firm PLLC, Alexandria, VA, for Plaintiff.

Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant
Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, for Defendant. Lt. Col. Gregory J. Fike, Assistant General
Counsel, Defense Intelligence Agency, Of Counsel.

                               OPINION AND ORDER

KAPLAN, Judge.

       In this post-proposal, pre-evaluation bid protest, Plaintiff Strategic Business
Solutions, Inc. (SBSI) challenges the Defense Intelligence Agency’s (DIA) decision to
exclude its proposal from consideration for a contract award. DIA’s decision was based
on SBSI’s failure to comply with the solicitation’s requirement that it provide redacted
copies of its proposal that would conceal its identity and the identity of any of its
proposed subcontractors.

        Each party has moved for judgment on the administrative record. As discussed
below, the Court concludes that SBSI’s proposal did not conform to the solicitation and
that the agency did not abuse its discretion when it excluded SBSI’s proposal from



*
 This Opinion was originally issued under seal, and the parties were given the
opportunity to request redactions. Neither party requested redactions, and the Opnion is
now being reissued in full.
consideration. Accordingly, the government’s motion for judgment on the administrative
record is GRANTED, and SBSI’s cross-motion is DENIED.

                                    BACKGROUND

I.     The Solicitation

         On August 22, 2014, DIA issued solicitation number HHM402-14-R-0005.
Administrative Record (AR) Tab 4a at 410. The solicitation was a request for proposals
(RFP) seeking contractors to provide “financial management and related services” to
“assist the Agency[’s] efforts to establish internal controls and demonstrate and sustain
audit readiness by the end of FY 2016.” Id. at 410–12, 433. The contract vehicle was
titled “Solutions for Intelligence Financial Management,” or “SIFM II.”1 Id. at 412. The
contract would be a “Multiple Award – Indefinite Delivery Indefinite Quantity (IDIQ)
Contract” with minimum orders of $2,500 and a five-year contract ceiling of
approximately $75,000,000. Id.

        The RFP directed prospective offerors to submit their proposals in three volumes:
(1) Security Plan and Technical/Management; (2) Past Performance; and (3) Price. Id. at
518. It also included a table with instructions regarding how many copies of each volume
the offeror should submit and what form those copies should take. Id. at 519. In
particular, those instructions provided that offerors were to provide for each of the first
two volumes one written, non-redacted copy; one electronic, non-redacted copy; and
seven written, redacted copies. Id.

         In a provision derived from the FAR, the RFP informed offerors that the
government “intend[ed] to make a single or multiple award(s) . . . to the responsible
offeror(s) whose offer(s), conforming to the solicitation, will be the best value to the
Government.” Id. at 532 (quotation omitted); see also FAR 52.212-2(a) (“The
Government will award a contract resulting from this solicitation to the responsible
offeror whose offer conforming to the solicitation will be most advantageous to the
Government, price and other factors considered.”). Further, the government “reserve[d]
the right to award this effort based on the initial proposal, as received, without
discussion.” AR Tab 4a at 522; see also id. at 514 (“The Government intends to evaluate
offers and award a contract without discussions with offerors.” (quoting FAR 52.212-
1(g))); FAR 15.306(a)(3) (“Award may be made without discussions if the solicitation
states that the Government intends to evaluate proposals and make award without
discussions.”). Finally, the RFP included a provision derived from FAR 52.212-1(g)
stating that the government “may reject any or all offers if such action is in the public
interest; accept other than the lowest offer; and waive informalities and minor
irregularities in offers received.” AR Tab 4a at 513–14.




1
 A predecessor contract vehicle, titled “SIFM I,” ran from 2008 to 2014. See Transfer
Compl. ¶¶ 12–13, ECF No. 10.



                                             2
        On September 18, 2014, DIA issued Amendment 04 to the RFP. Id. Tab 4i at 601.
The amendment included a list of questions from prospective offerors and the
government’s answers to those questions. Id. at 691–732. Question 22 noted that the
solicitation “d[id] not provide any guidance on what is meant by ‘Redacted’” and asked
the government to:

            [P]lease address whether or not the following information is
            required to be redacted:
             Prime Offeror company name
             Subcontractors company name(s)
             Prime Offeror individual personnel name(s)
             Subcontractor individual personnel name(s)
             Prime Offeror’s proposed Key Personnel name(s)
             Information identifying the Prime Offeror or any proposed
               subcontractors’ [sic] status as a current incumbent on the SIFM
               I contract vehicle.

Id. at 695. The government responded that “[a]ll bulleted info shall be redacted and no
additional information needs to be redacted.” Id.

II.    SBSI’s Proposal and DIA’s Decision to Exclude the Proposal from
       Consideration

         SBSI submitted its proposal on October 6, 2014. Id. Tab 5a at 733. In a cover
letter, SBSI expressly took “no exceptions” to the solicitation and acknowledged all of
the RFP’s amendments, including Amendment 04. Id. SBSI’s proposal, however, did not
fully comply with the RFP’s redaction requirements. Specifically, in more than 100
places throughout the proposal, SBSI failed to redact its name, the names of its
subcontractors, and the names of several of its proposed personnel (including the names
of some of its proposed key personnel). See id. Tab 6b at 1011 (contracting officer’s
summary of failures to redact).

        The agency received seventeen proposals. Id. Tab 2 at 17. The contracting officer
(CO) then convened a source selection evaluation board (SSEB) and provided its
members with the redacted volumes received from each offeror. See id. On November
18, 2015, the SSEB’s chair emailed the CO to explain that “there might be an issue with
[SBSI’s] [p]roposal in that it is not fully redacted.” Id. Tab 6a at 1007. The chair
observed that “[t]his would directly impact my level of confidence in [SBSI] if they can’t
get the redaction right.” Id.

        On November 25, 2014, the CO notified SBSI by letter that he had excluded
SBSI’s proposal from further consideration. Id. Tab 6b at 1010. In the letter, the CO
excerpted the portion of Amendment 04 that explained the redaction requirements. Id. He
then informed SBSI that “[b]ased on SBSI’s failure to submit redacted copies of its
proposal in accordance with the terms of the solicitation,” he found its proposal
unacceptable. Id. at 1011. He also listed several representative places in the proposal
where SBSI had failed to comply with the redaction requirement, and noted that the list


                                            3
was “not necessarily exhaustive.” Id. Because its proposal was unacceptable, the CO
informed SBSI that it “w[ould] not be considered for award.” Id. at 1010.

III.   GAO Protest

        On December 10, 2014, SBSI filed a protest with the Government Accountability
Office (GAO). Id. Tab 3a at 24. It contended that the CO improperly rejected its proposal
on the ground that the non-redactions constituted “a minor informality that should have
been waived by the Contracting Officer (as it had been in previous DIA competitions
under a predecessor contract).” Id. Alternatively, it argued that “if this was a technical
evaluation resulting in an ‘unacceptable’ rating, it was an improper evaluation based on
undisclosed criteria.” Id.

       GAO denied the protest. Id. Tab 8 at 1019. Addressing only SBSI’s first
argument, GAO “disagree[d] with SBSI’s characterization of its failure to redact
information as . . . a ‘minor informality.’” Id. at 1021. Rather, the redaction requirement
was “an explicit, mandatory requirement.” Id. at 1022. Accordingly, GAO found that the
agency did not “act[] unlawfully when it refused to further consider [SBSI’s] offer[] for
award.” Id.

IV.    SBSI’s Attempt to Appeal GAO’s Decision and This Action

        On March 25, 2015, SBSI noted an appeal of GAO’s decision to the Court of
Appeals for the Federal Circuit. See Pet. for Review, Strategic Bus. Sols., Inc. v. Def.
Intelligence Agency, No. 2015-6001 (Fed. Cir. Apr. 1, 2015), ECF No. 1. On November
20, 2015, after resolving various preliminary procedural matters, the Federal Circuit
dismissed the appeal for lack of subject matter jurisdiction, observing that GAO’s non-
binding bid protest decisions “serve as recommendations and are not subject to review in
any court.” See Order at 2–3, Strategic Bus. Sols., Inc., No 15-6001 (Fed. Cir. Nov. 20,
2015), ECF No. 26. The Court of Appeals then ordered the appeal transferred to the
Court of Federal Claims, reasoning that the Court of Federal Claims “m[ight] have
jurisdiction to review the DIA’s rejection of SBSI’s proposal, although not the GAO’s
review of that decision.” Id. at 3.

        This Court received the transferred record from the Court of Appeals on January
14, 2016. See ECF No. 1 (minute entry). SBSI took no immediate action in the wake of
the transfer. Accordingly, on March 1, 2016, the Court ordered SBSI to show cause why
the Court should not dismiss the case under RCFC 41(b). ECF No. 4.

        After responding to the Court’s order, ECF No. 7, SBSI filed a transfer complaint
on March 21, 2016. ECF No. 10. In the transfer complaint, SBSI alleged that beginning
in 2008, it had successfully performed several task orders under SIFM I. Transfer Compl.
¶¶ 12–13. It then acknowledged that it “did not redact references to SIFM I in [their]
entirety” in the proposal at issue. Id. ¶ 15. According to SBSI, its failure to redact these
references was deliberate. Particularly, it alleges, performance under SIFM I “was SBSI’s
only directly relevant IDIQ contract in Financial Management.” Id. Further, that




                                             4
performance “reveal[ed] that SBSI successfully competed for SIFM against [several]
very large companies.” Id.

        SBSI then asserted several claims in connection with DIA’s decision to exclude
its proposal from consideration for award. First, it contended that its failure to redact did
not amount to a “material failure” to comply with the RFP’s terms. Id. ¶ 30(a). It also
alleged that DIA’s decision violated FAR 14.405 and FAR 15.304. Id. ¶ 30(b)–(c).
Finally, it claimed that the redaction requirement violated the Competition in Contracting
Act (CICA), 10 U.S.C. § 2304 & 41 U.S.C. § 3301, because the requirement “adversely
impacted SBSI as it was the only small business/prime that had SIFM I IDIQ
experience.” Id. ¶ 30(d). As relief, it requested that the Court “[f]ind in favor of SBSI’s
claims as stated” and “[r]equire DIA to reinstate SBSI into the procurement process for
SIFM II and proceed to the technical, cost, and past performance evaluation.” Id. at 9.

        After filing the administrative record, the government filed a motion for judgment
on that record on May 24, 2016. ECF No. 17. SBSI filed an opposition to the
government’s motion on June 24, 2016, attaching a brief it filed before GAO that it
believed should have been included in the administrative record. ECF No. 19. The Court
stated that, assuming SBSI did not object, it would treat SBSI’s opposition as a cross-
motion for judgment on the administrative record. ECF No. 20. It also granted SBSI’s
request to have its GAO brief included in the administrative record. Id. SBSI did not note
any objection to having its opposition treated as a cross-motion. See Docket. The
government then filed a response to SBSI’s cross-motion and a reply in support of its
motion on August 5, 2016. ECF No. 23. SBSI filed a reply in support of its cross-motion
on August 19, 2016. ECF No. 24. Oral argument was held on the cross motions on
November 22, 2016.

                                      DISCUSSION

I.     Jurisdiction

        The Court of Federal Claims’ bid protest jurisdiction is defined by 28 U.S.C.
§ 1491(b)(1). That statute grants the Court jurisdiction to “render judgment on an action
by an interested party objecting to . . . a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” Id. As the Federal Circuit has observed, “[o]n its face, the statute grants
jurisdiction over objections to a solicitation, objections to a proposed award, objections to
an award, and objections related to a statutory or regulatory violation so long as these
objections are in connection with a procurement or proposed procurement.” Sys.
Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380–81 (2012).

        As indicated by the statute, a plaintiff must be an “interested party” to have
standing to invoke the Court’s bid protest jurisdiction. CGI Fed. Inc. v. United States,
779 F.3d 1346, 1348 (Fed. Cir. 2015); Myers Investigative & Sec. Servs., Inc. v. United
States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002). According to the Federal Circuit, an
“interested party” under 28 U.S.C. § 1491(b)(1) is “an actual or prospective bidder . . .
whose direct economic interest would be affected by the award of the contract.” CGI


                                              5
Fed., 779 F.3d at 1348 (quoting Am. Fed’n of Gov’t Emps, AFL-CIO v. United States,
258 F.3d 1294, 1299 (Fed. Cir. 2001); see also Info. Tech. & Applications Corp. v.
United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). An offeror has a direct economic
interest if the alleged errors in the procurement caused it to suffer a competitive injury or
prejudice. See Myers Investigative & Sec. Servs., Inc., 275 F.3d at 1370 (holding that
“prejudice (or injury) is a necessary element of standing”).

         In a post-proposal, pre-evaluation protest (like this one), an offeror meets this
standard if it can show that it had a “substantial chance” of receiving the award but for
the alleged errors in the procurement. Orion Tech., Inc. v. United States, 704 F.3d 1344,
1348–49 (Fed. Cir. 2013). Thus, the protester must establish that absent the alleged
errors, it “could have likely competed for the contract.” Id. at 1349. Here, SBSI alleges
that its proposal conformed to all of the RFP’s requirements except the redaction
requirement, and the government does not appear to contest that SBSI could have likely
competed for the contract if its proposal had not been excluded for violating the redaction
requirement. Thus, SBSI has standing to bring this protest, and the Court therefore has
jurisdiction.

II.    The Parties’ Cross-Motions for Judgment on the Administrative Record

       A.      Standard for Granting Judgment on the Administrative Record

        Pursuant to Rules of the Court of Federal Claims (RCFC) 52.1, the court reviews
an agency’s procurement decision based on the administrative record. See Bannum, Inc.
v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005). The court makes “factual findings
under RCFC [52.1] from the record evidence as if it were conducting a trial on the
record.” Id. at 1357. Thus, “resolution of a motion respecting the administrative record is
akin to an expedited trial on the paper record, and the [c]ourt must make fact findings
where necessary.” Baird v. United States, 77 Fed. Cl. 114, 116 (2007). The court’s
inquiry is “whether, given all the disputed and undisputed facts, a party has met its
burden of proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United
States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary judgment proceeding, genuine
issues of material fact will not foreclose judgment on the administrative record. Bannum,
Inc., 404 F.3d at 1356.

       B.      Standard of Review in Bid Protest Cases

        The court reviews challenges to a procurement decision under the same standards
used to evaluate an agency action under the Administrative Procedure Act, 5 U.S.C.
§ 706. See 28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the
courts shall review the agency’s decision pursuant to the standards set forth in section
706 of title 5”). Thus, to successfully challenge an agency’s procurement decision, a
plaintiff must show that the decision was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc., 404
F.3d at 1351. This “highly deferential” standard “requires a reviewing court to sustain an
agency action evincing rational reasoning and consideration of relevant factors.”




                                              6
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)
(citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).

         In a bid protest action, the protester “bears a heavy burden” in attempting to show
that the agency’s decision lacked a rational basis, and the court’s function is limited to
“determin[ing] whether ‘the . . . agency provided a coherent and reasonable explanation
of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1332–33, 1338 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v.
U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). Thus, to prevail, the agency
need only articulate a “rational connection between the facts found and the choice made,”
and the court will “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (quotations omitted).

       C.      DIA’s Decision to Reject SBSI’s Proposal

         It is well established that, in negotiated procurements like this one, an agency’s
decision to exclude an incomplete or non-conforming proposal from consideration is
“entitled to a high degree of deference.” See Orion Tech., 704 F.3d at 1351 (holding that
the Army reasonably excluded proposal from competition where it failed to include
required pricing information); see also Equa Sols., Inc. v. United States, 120 Fed. Cl. 371,
381 (2015) (decision to exclude proposal upheld because it had a rational basis); G4S
Tech. CW LLC v. United States, 109 Fed. Cl. 708, 724 (2013) (same); USfalcon, Inc. v.
United States, 92 Fed. Cl. 436, 464–65 (2010) (same). Further, in accordance with FAR
52.212-2(a), the RFP in this case specifically informed offerors that only those proposals
that conformed to the solicitation would be eligible for an award. See AR Tab 4a at 532
(informing offerors that the government “intend[ed] to make a single or multiple
award(s) . . . to the responsible offeror(s) whose offer(s), conforming to the solicitation,
will be the best value to the Government” (emphasis added) (quotation omitted)); see also
FAR 52.212-2(a) (indicating government will award contract to offeror whose proposal
conforms to the solicitation and is the most advantageous to the government). And,
finally, the solicitation also incorporated FAR 52.212-1(b)(11) stating that “[o]ffers that
fail to furnish required representations or information, or [that] reject the terms and
conditions of the solicitation may be excluded from consideration.” See AR Tab 4a at
513–14.

        Here, the record confirms and it is not disputed that SBSI’s proposal did not
conform to the instructions in the RFP. Thus, the RFP included an instruction that
required offerors to submit copies of their technical and past performance volumes in
redacted form. Notwithstanding that requirement, SBSI acknowledges that it deliberately
failed to redact references to the fact that it had been a contractor on SIFM I, and the
agency correctly found multiple other failures to redact the proposal, totaling over 100
instances of non-compliance. The Court thus has no basis for upsetting the agency’s
determination that SBSI’s proposal should be excluded from consideration because it
failed to comply with the redaction requirement. See LS3 Inc., B-401948.11, 2010 WL
2862041 (Comp. Gen. July 21, 2010) (finding that agency properly rejected proposal that
contained identifying information where solicitation explicitly required such information


                                             7
to be redacted); SNAP, Inc., B-402746, 2010 WL 2804498 (Comp. Gen. July 16, 2010)
(same).2

         Although not entirely clear, the primary bases for SBSI’s bid protest in this case
(at least as expressed in its briefs) appear to be that its failure to redact its proposal was
not a “material” failure, that the agency should have treated the defect as a “minor
informality or irregularity” within the meaning of FAR 14.405, and that, as such, the
agency was required either to waive the defect or to permit SBSI to cure it.3 See Pl.’s
Opp’n to Mot. for J. on the Admin. R. (Pl’s Opp’n) at 7–8, 18–20, ECF No. 19. These
arguments lack merit.

        First, even assuming that SBSI’s failure to comply with the redaction requirement
could be considered a minor informality or irregularity, the agency was not required to
give SBSI an opportunity to cure its error; nor was it required to waive the error. The
mandatory opportunity to cure/waiver requirements of FAR 14.405 apply where a
procurement is accomplished by means of sealed bidding. See FAR 14.101. This
procurement, however, was governed by FAR Part 12 (Acquisition of Commercial Items)
and FAR Part 15 (Contracting by Negotiation). Both Parts provide that a waiver of minor
errors is discretionary, not mandatory.

         Thus, FAR 12.301(b)(1) requires that contracts for the acquisition of commercial
items include the clause set forth at FAR 52.212-1(g), which states that the agency “may .
. . waive informalities and minor irregularities in offers received.” (emphasis added); see
AR Tab 4a at 513–14 (incorporating FAR 52.212-1(g)). Similarly, FAR 15.306(a)(2)
states that “[i]f award will be made without conducting discussions, offerors may be

2
  GAO decisions are “not binding authority,” but may be “instructive in the area of bid
protests.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4 (Fed. Cir. 2009);
see also Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1084 (Fed. Cir. 2003)
(decisions of the GAO are treated as expert opinions, which the court should “prudently
consider” (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 201 (D.C. Cir.
1984))), aff’d in part, rev’d in part sub nom. Cherokee Nation of Okla. v. Leavitt, 543
U.S. 631 (2005).
3
    FAR 14.405 states, in pertinent part, as follows:

          A minor informality or irregularity is one that is merely a matter of form
          and not of substance. It also pertains to some immaterial defect in a bid or
          variation of a bid from the exact requirements of the invitation that can be
          corrected or waived without being prejudicial to other bidders. The defect
          or variation is immaterial when the effect on price, quantity, quality, or
          delivery is negligible when contrasted with the total cost or scope of the
          supplies or services being acquired. The contracting officer either shall give
          the bidder an opportunity to cure any deficiency resulting from a minor
          informality or irregularity in a bid or waive the deficiency, whichever is to
          the advantage of the Government.



                                                8
given the opportunity . . . to resolve minor or clerical errors” (emphasis added)). In short,
Part 15 does not “requir[e] contracting officers to clarify minor or clerical errors in
negotiated procurements”; permitting such clarifications is discretionary, “unlike the
mandatory nature of the comparable [rules] in Part 14 for sealed bidding.” BCPeabody
Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 510 (2013); see also Bus. Integra,
Inc. v. United States, 116 Fed. Cl. 328, 334 (2014) (observing that the “regulatory
regime” applicable to sealed bidding “differs significantly” from the regime applicable to
procurement by negotiation); ST Net, Inc. v. United States, 112 Fed. Cl. 99, 111 (2013)
(observing that “[t]his court has repeatedly recognized the permissive nature of [Section
15.306] in the context of negotiated procurements”).

         In any event, SBSI’s failure to redact its proposal in over 100 places does not
involve a “minor informality or irregularity,” i.e., “one that is merely a matter of form
and not of substance,” and that “pertains to some immaterial defect in a bid or variation
of a bid from the exact requirements of the invitation that can be corrected or waived
without being prejudicial to other bidders.” FAR 14.405. For purposes of Part 14, such
errors might include, for example, providing the wrong number of copies of the bid,
listing the wrong number of employees, or failing to sign the bid itself where the
submission includes other material indicating the bidder’s intent to be bound. See id.

        The redaction requirement, however, is not a formalistic one comparable to the
types of requirements violated in the examples set forth at FAR 14.405. It served a
substantive purpose—promoting the unbiased evaluation of all offerors’ proposals.
Moreover, the information revealed in an unredacted proposal could affect an offeror’s
chances of receiving a contract award. In fact, to at least some extent, SBSI’s failure to
redact was deliberate and designed to give it an advantage (or at least to remove some
perceived disadvantage).4 It would be inappropriate to apply an exception designed to
relieve an offeror of the consequences of an inadvertent minor mistake where, as here, it
has acted in deliberate defiance of the solicitation’s requirements and for purposes of
securing an advantage.

       Similarly, SBSI’s failure to redact could not have been corrected or waived
without prejudicing other offerors. For if the violation were waived, the agency’s
technical evaluators would have had access to critical information about SBSI’s
experience and proposed staff that the other offerors who complied with the instructions
were not able to present. If, on the other hand, SBSI were allowed to cure the defect (by
submitting a compliant proposal), the agency would have been required to convene an

4
  Although SBSI claims that many of its over 100 redaction failures were “accidental,” it
acknowledges that the references to its experience under the predecessor contract were
intentionally left unredacted. See Pl.’s Opp’n at 4 (stating that “prior experience on SIFM
I aside, the omissions were accidental”); see also AR Tab 3a at 160–61 (declaration of
SBSI’s president and CEO stating that “SBSI left some of th[e] information unredacted”
noting as an example that “SBSI’s work under the predecessor SIFM contract is a major
part of SBSI’s experience, and SBSI could not redact this in a manner that would both
maintain its anonymity and demonstrate its technical competence”).



                                              9
entirely new SSEB or take some other extraordinary action to ensure that those reviewing
and evaluating SBSI’s proposal were not tainted by SBSI’s submission of the unredacted
proposal.

        In short, the failure to redact did not involve a minor informality or irregularity.
And the agency clearly acted within its discretion when it rejected SBSI’s offer based on
its non-compliance with the redaction requirement.

        SBSI’s remaining claims of error also lack merit. Thus, SBSI contends that
because the technical evaluation panel discovered the redaction errors while evaluating
SBSI’s proposal, the exclusion must have been based on an unstated evaluation criterion,
which is unlawful under FAR 15.304. See Pl.’s Opp’n at 9–10. But while SBSI’s failure
to redact was not discovered until the evaluation of the proposals began, the exclusion of
the proposal was not a result of the application of some unstated evaluation criterion—it
was a result of SBSI’s failure to follow the instructions in the solicitation regarding
redaction. And SBSI offers no support whatsoever for its further argument that—once the
evaluation process began—the agency was required to conduct an evaluation of its
proposal pursuant to the factors set forth in section M of the RFP, notwithstanding that
SBSI’s proposal was not redacted as the RFP required.

         Finally, SBSI claims that the redaction requirement itself was unfair and improper
at least insofar as it required SBSI to redact reference to its status as a contractor for
SIFM I. See Transfer Compl. ¶ 30(d); see also Pl.’s Opp’n at 28–29. Specifically, in its
complaint, SBSI alleged that “the last instruction in the redacting requirements violated
CICA in that it required proposals [to] redact any and all references to SIFM I,” which
had the effect of “adversely impact[ing] SBSI as it was the only small business/prime that
had SIFM I IDIQ experience.” Transfer Compl. ¶ 30(d). Because SBSI did not raise its
objection to the solicitation’s terms until after the award was made, however, the
objection is waived. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed.
Cir. 2007); see also COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381–82 (Fed.
Cir. 2012).

                                     CONCLUSION

       For the reasons discussed above, the government’s motion for judgment on the
administrative record is GRANTED, and SBSI’s cross-motion for judgment on the
administrative record is DENIED. The Clerk is directed to enter judgment accordingly.
Each side shall bear its own costs.

       IT IS SO ORDERED.



                                                     s/ Elaine D. Kaplan
                                                     ELAINE D. KAPLAN
                                                     Judge




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