225 F.3d 761 (D.C. Cir. 2000)
J.A. Jones Management Services, Petitionerv.Federal Aviation Administration, RespondentWackenhut Services, Inc., Intervenor
No. 00-1023
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000Decided September 29, 2000

On Petition for Review of a Final Order of the Federal Aviation Administration
Douglas L. Patin argued the cause and filed the briefs for  petitioner.
Sandra Wien Simon, Attorney, U.S. Department of Justice, argued the cause for respondent.  With her on the brief were David W. Ogden, Acting Assistant Attorney General,  and Anthony J. Steinmeyer, Attorney.
Richard J. Webber argued the cause and filed the brief for  intervenor Wackenhut Services, Inc.
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:


1
A disappointed bidder challenges the  Federal Aviation Administration's award of a contract.  Reviewing the FAA's decision pursuant to the highly deferential  arbitrary and capricious standard, we deny the petition for  review.


2
* Following a competitive bidding process, the FAA awarded  Wackenhut Services, Inc., intervenor herein, a $5 million  contract to provide operations and maintenance services at  the William Hughes Technical Center, a 5059 acre facility in  New Jersey that serves as the national scientific test base for  FAA research, development, and acquisition programs.  Pursuant to FAA procedures, petitioner J.A. Jones Management,  an unsuccessful bidder, protested the award to the agency's  Office of Dispute Resolution for Acquisition ("ODRA").  In  that protest, Jones claimed both that the agency failed to  follow its own procedures and that Wackenhut failed to meet  the contract solicitation's substantive requirements.  After  reviewing the evidence and making factual findings, ODRA  recommended that Jones's protest be denied.  Adopting  ODRA's findings and recommendations, the FAA Administrator issued a final order awarding the contract to Wackenhut.


3
The solicitation required the contract to be awarded to the  responsible, low-priced offer or deemed acceptable in each of  several listed technical areas.  The agency contracting officer,  assisted by a contract specialist, oversaw the procurement  decision.  As outlined in the solicitation, an eight-member  Technical Evaluation Board following a Technical Evaluation Plan was responsible for determining whether offers met the  technical requirements.  According to the Plan, if the Board  unanimously decided that an offer failed in any one area, the  offer or would be disqualified from further consideration.  All  agree that if the Board was not unanimous, the contracting  officer would retain discretion to award the contract to the  offer or.


4
At a July 26, 1999 meeting, the Technical Evaluation Board  unanimously disqualified Wackenhut, stating in its report that  the company had failed in two specific areas:  demonstrating  how it would remove snow from the facility and proposing an  electrical engineer with the required work experience.  Reviewing the Board decision, the contract specialist discovered  that the individual evaluation sheet of one of the Board  members--Evaluator F--indicated that he had given Wackenhut a passing grade in both areas.  In particular, referring  to the snow removal task, Evaluator F wrote on his scoring  sheet:  "I think this was addressed adequately."  When the  contract specialist asked for an explanation, the Board chair  pointed out that, despite his individual assessment, Evaluator  F had signed the report disqualifying Wackenhut in the two  areas.  The chair also told the contract specialist that Evaluator F had agreed to change his individual scoring sheet to  reflect the Board's evaluation.  As ODRA later found, however, Evaluator F failed to do so.


5
Unsatisfied, the contract specialist arranged a second  Board meeting to discuss the inconsistency between the  Board report and Evaluator F's individual scoring sheet.  At  that meeting, which occurred on August 12, Evaluator F  reiterated his belief in the acceptability of Wackenhut's offer  and refused to change his evaluation sheet.  During a break  in the meeting, Evaluator F, believing that his unwillingness  to change his assessment of Wackenhut had become an  obstacle to agreement, telephoned the contract specialist and  asked to be removed from the Board.  The contract specialist  denied his request.


6
After the break, the chair called the contract specialist to  inform her that the Board was still discussing Wackenhut's proposal.  The contract specialist directed the chair to postpone any further action until she finished discussing the  matter with the contracting officer and agency counsel.  During that discussion, the three found Wackenhut's offer technically acceptable and decided not to follow the Board's assessment.  Learning of this decision, the chair reconvened the  Board.  Under the circumstances, the Board decided it was  pointless to meet further.  The contracting officer later determined that Wackenhut was the responsible, low-priced offer or  deemed acceptable in all of the solicitation's technical areas. Wackenhut was awarded the contract.


7
After hearing testimony about these events, ODRA concluded that the contracting officer properly followed agency  procedures in awarding the contract to Wackenhut.  Central  to the dispute in this case, ODRA found that the Board's  decision hadnot been unanimous and that Wackenhut had  therefore not been disqualified.  This determination rested  primarily on the events of the August 12 meeting--in particular, Evaluator F's continued refusal to agree that Wackenhut  was unacceptable.  At one point in its report, ODRA found  that "[i]t is undisputed that, at the conclusion of the final  Board meeting on August 12, the Board, in a non-unanimous  vote, found Wackenhut's proposal unacceptable."  Reviewing  all of the evidence, ODRA concluded that the meeting "ended  in a non-unanimous Board decision."


8
Jones, the unsuccessful bidder, now challenges the award of  the contract to Wackenhut.  Jones claims that, contrary to  ODRA's finding, no non-unanimous vote occurred at the end  of the August 12 meeting.  As Jones views the events of  August 12, the Board reached no decision at all.  Accordingly,  Jones argues, the contracting officer was bound by the July  26 unanimous disqualification of Wackenhut.  Focusing on  three of the solicitation's technical requirements, Jones also  challenges the contracting officer's determination that Wackenhut was qualified.  We consider each claim in turn.

II

9
We review the FAA's non-unanimity finding under the  familiar arbitrary and capricious standard.  See 5 U.S.C. § 706(2)(A).  Under this standard, we "may reverse only if  the agency's decision is not supported by substantial evidence, or the agency has made a clear error in judgment."Kisser v. Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994);  see also  49 U.S.C. § 46110(c) (FAA "[f]indings of fact ..., if supported  by substantial evidence, are conclusive.").  Jones fails to  appreciate the result this highly deferential standard so clearly dictates.


10
Jones argues that the contracting officer lacked discretion  to disregard the Board's disqualification of Wackenhut.  Because Jones concedes that the contracting officer had discretion to disregard a non-unanimous Board, its claim necessarily turns on its assertion that the Board was in fact  unanimous.  To prevail, Jones must demonstrate that the  agency's determination to the contrary did not rest on substantial evidence.  Yet as ODRA found, not only did Evaluator F declare Wackenhut acceptable on his individual scoring sheet (which he never altered despite his apparent  promise to do so), but at the August 12 meeting, he again  refused to change his evaluation.  This evidence is more  than enough to sustain the agency's finding of non-unanimity.


11
Seeking to undermine the agency's decision, Jones argues  that it rests on an unsupported ODRA factual finding:  that  "it is undisputed that, at the conclusion of the final Board  meeting on August 12, the Board, in a non-unanimous vote,  found Wackenhut's proposals unacceptable."  The finding  that formal balloting took place at the August 12 meeting  indeed lacks support in the record.  ODRA's error does not  require reversal, however, for we do not believe that the  agency rested its decision solely on the existence of a formal  vote.  See 5 U.S.C. § 706 ("[D]ue account shall be taken of  the rule of prejudicial error.").  As we read ODRA's report,  the agency relied primarily on Evaluator F's individual evaluation sheet and his statements at the August 12 meeting. Using the word "vote" only twice, ODRA's report repeatedly  refers to a non-unanimous Board "decision."  Moreover, as  Jones's counsel concedes, neither the agency's procedures nor  the contract solicitation required a formal vote, so ODRA had no reason to consider the existence of a vote significant. Thus, even without relying on the existence of a non-unanimous vote, the agency had adequate support for its  ultimate conclusion that "[t]he August 12 meeting, which was  the last meeting of the Board on the subject, ended in a non-unanimous Board decision of unacceptability of the Wackenhut proposal."Jones provides little evidence to counter the agency's non-unanimity determination.  Pointing out that the contract specialist cut off the August 12 meeting in the middle of discussion, Jones argues that the Board reached no decision at all. While this is certainly one possible view of what happened at  the meeting, the question we face is "not whether [petitioner's] view of the facts supports its version of what happened,  but rather whether the [agency's] interpretation of the facts  is reasonably defensible."  Harter Tomato Prods. Co. v.  NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998) (internal quotation  marks omitted).  As we demonstrate above, ODRA's non-unanimity determination finds more than adequate support in  the record.

III

12
Jones's remaining claims require little attention.  Arguing  that Wackenhut's offer failed to meet the solicitation's substantive requirements, Jones urges us to reverse the agency's  final contract award.  Where a procurement decision requires  an agency to assess an offeror's qualifications to perform a  contract, our review is "especially deferential."  See Iceland  S.S. Co., Ltd.-Eimskip v. United States Dept. of the Army,  201 F.3d 451, 461 (D.C. Cir. 2000).  We are particularly  reluctant to second-guess agency decision making on these  " 'delicate questions.' "  Elcon Enters., Inc. v. Washington  Metro. Area Transit Auth., 977 F.2d 1472, 1479 (D.C. Cir.  1992) (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d  197, 203 (D.C. Cir. 1984)).


13
Jones first claims that Wackenhut failed to satisfy the  solicitation's past performance provisions, which required experience managing a facility of similar size, i.e., with "over 60 employees and/or over $5 million per year."  The FAA found  that Wackenhut met this requirement, based in part on its  experience managing a correctional facility with sixty workers, including forty-four inmates.  Jones contends that the  agency erred in considering the inmates to be employees. But as the agency found, the inmates were employees because they were both paid and supervised by Wackenhut. Given our especially deferential standard of review, we cannot  imagine a basis for overturning the agency's judgment on this  issue.  Nor do we find any reason to credit Jones's unsupported assertion that Wackenhut's experience managing a  correctional facility was not the type of experience the solicitation required.


14
Jones next argues that the FAA was not entitled to award  the contract to Wackenhut because the company failed to  include in its offer a copy of its proposed Environmental  Specialist's license.  By providing that such a failure "may"  render the proposal ineligible, however, the solicitation left  the agency with discretion to award the contract to a bidder  whose offer omitted the required license.


15
Equally without merit is Jones's final claim that the agency  was not entitled to award the contract to Wackenhut because  its offer contained rEsumEs of key personnel whose consent  had not been obtained.  Relying again on our highly deferential standard of review, we find no basis for disturbing  ODRA's judgment that the rEsumEs were submitted in good  faith.

IV

16
The petition for review is denied.


17
So ordered.

