Free Order - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
No. 07-712 C (Filed under seal: November 15, 2007) (Reissued: December 20, 2007)1 ************************************* PRECISION IMAGES, LLC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * and * * GE INSPECTION TECHNOLOGIES, LP, * * Defendant-Intervenor. * ************************************* Cyrus E. Phillips, IV, Washington, DC, for plaintiff. Joseph E. Ashman, United States Department of Justice, Washington, DC, for defendant. David A. Churchill, Washington, DC, for Defendant-Intervenor. Kevin C. Dwyer, of counsel. OPINION AND ORDER SWEENEY, Judge This post-award bid protest is before the court on the parties' cross-motions for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of

Post-Award Bid Protest; CrossMotions for Judgment on the Administrative Record; RCFC 52.1; Standing; Prejudice; Rational Basis.

The court issued this Opinion and Order under seal on November 15, 2007. The court directed the parties to submit proposed redactions by November 27, 2007. After plaintiff and defendant disputed the extent to which the court should redact material, the court, in an order dated December 19, 2007, adopted defendant's proposed redactions. The Opinion and Order reissued today incorporates these redactions, indicated by brackets, and corrects minor errors. -1-

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Federal Claims ("RCFC"). Plaintiff, Precision Images, LLC ("Precision" or "plaintiff"), challenges an award to Defendant-Intervenor GE Inspection Technologies, LP ("GE") under a solicitation issued by defendant, the United States, acting through the Department of the Air Force, Air Force Materiel Command ("Air Force" or "defendant"). The solicitation was issued for the procurement of Ultrasonic Flaw Detectors ("UFDs") for use as joint Department of Defense Services testing equipment. Precision asks that this court: declare that the Air Force's award of the contract to GE lacked a rational basis, was arbitrary and capricious, was unlawful, and violated applicable procurement statutes and regulations; declare that Precision is entitled to equitable relief and money damages for the Air Force's breach of its implied-in-fact contract with Precision to act in good faith, engage in fair dealing, and honestly consider Precision's bid proposal; enjoin permanently GE's performance of the contract; direct the Air Force to award the contract to Precision;2 and grant Precision any other relief this court deems just and proper. For the reasons set forth below, Defendant's Motion for Judgment on the Administrative Record is granted, and Plaintiff's Cross-Motion for Judgment on the Administrative Record is denied. I. FACTUAL BACKGROUND3 A. Solicitation On April 5, 2007, the Air Force posted a Presolicitation Notice for the procurement of UFDs to the Federal Business Opportunities ("FBO") Internet website.4 AR 93-95. UFDs "provide reliable means for performing ultrasonic inspections of aircraft metallic and nonmetallic structures to include crack detection, corrosion testing, and thickness testing" and would be utilized by Air Force installations, by joint Department of Defense organizations, and for foreign military sales. Id. at 93. The Presolicitation Notice informed prospective bidders that the

In its Complaint ("Compl."), Precision seeks a permanent injunction terminating the contract awarded to GE and ordering the Air Force to redetermine a source selection based upon the existing proposals submitted and in compliance with applicable statutes and regulations. Compl. Prayer for Relief ¶ 2. In its Response to the Cross-Motion for Judgment on the Administrative Record ("Pl.'s Resp."), Precision requests relief not specifically sought in the Complaint, namely, that the court order a directed award of the contract to Precision. Pl.'s Resp. 5. For purposes of ruling on the parties' motions, the factual background is derived from the administrative record ("AR"). The FBO website is "the single government point-of-entry (GPE) for Federal government procurement opportunities over $25,000. Government buyers are able to publicize their business opportunities by posting information directly to FedBizOpps via the Internet." Federal Business Opportunities, available at http://FedBizOpps.gov (last visited Nov. 13, 2007). -24 3

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"Government will utilize the Performance Price Trade-off (PPT) procedures, and will evaluate proposals and make award in accordance [with] the Evaluation Basis for Award provision" contained in the solicitation. Id. at 94. The Air Force issued solicitation number FA8533-07-R-11523 ("the solicitation" or "the RFP") for UFDs on April 20, 2007. Id. at 95, 103. The solicitation called for a five-year, firmfixed price,5 requirements-type,6 indefinite-delivery contract7 for one base-year period followed by four one-year option periods.8 Id. at 93-94, 105-11. A source selection decision would be based on a best-value award determination procedure. Id. at 129. The contract, which the Air Force estimated was worth $4.4 million, would be awarded in accordance with Federal Acquisition Regulations ("FAR") Part 12 and Part 15.9 Id. at 90; cf. id. at 746 (estimating the contract's total value at $4.3 million). 1. Product Description The contract requirements were enumerated in the solicitation and an accompanying Product Description. Id. at 96-102, 103-31. The Product Description "defines the minimum A firm-fixed price contract "provides for a price that is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract." 48 C.F.R. § 16.202-1 (2006). This type of contract "is suitable for acquiring commercial items . . . or for acquiring other supplies or services on the basis of reasonably definite functional or detailed specifications . . . ." Id. § 16.202-2. A requirements contract "provides for filling all actual purchase requirements of designated Government activities for supplies or services during a specified contract period, with deliveries or performance to be scheduled by placing orders with the contractor." Id. § 16.503(a). Contracting officers must provide a "realistic estimated total quantity" in the solicitation and resulting contract, though the estimate is not a representation that the estimated quantity will be required or ordered. 48 C.F.R. § 16.503(a)(1). There are three types of indefinite-delivery contracts: definite-quantity contracts, requirements contracts, and indefinite-quantity contracts. 48 C.F.R. § 16.501-2(a). An indefinite-quantity contract "provides for an indefinite quantity, within stated limits, of supplies or services during a fixed period. The Government places orders for individual requirements. Quantity limits may be stated as number of units or as dollar values." Id. § 16.504(a). The Government must order, and the contractor must furnish, "at least a stated minimum quantity of supplies or services." Id. § 16.504(a)(1). The best estimated quantity of UFDs to be delivered under the contract was 700: 160 units for the base period; 160 units for option year I; 135 units each for option years II and III; and 110 units for option year IV. AR 105-12.
9 8 7 6 5

See 48 C.F.R. §§ 12.000-.603, 15.000-.609. -3-

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performance and technical requirements for a lightweight microprocessor-based ultrasonic flaw detection and thickness testing instrument for Nondestructive Inspection (NDI) use in a military aircraft maintenance environment . . . ." Id. at 96. The Product Description contained requirements relating to, inter alia, battery, instrument display, computer interface, and environmental conditions specifications; necessary accessories; operational and technical manuals; and vendor/contractor points of contact for service and support.10 Id. at 96-102. 2. Proposal Requirements The solicitation required offerors to submit their proposals in two separate volumes. Id. at 126. In Volume I, offerors were to submit a completed, signed RFP "with a cover letter delineating any exceptions taken to the RFP terms and conditions" and proposed pricing. Id. In Volume II, offerors were to submit information about the offeror's past and present performance utilizing a "FACTS Sheet."11 Id. The solicitation indicated that FACTS Sheets must contain

One particular technical requirement contained within the initial Product Description concerned the UFDs' pulse width: 2.4.2.1 Pulse Width. The pulser shall generate the required amplitude pulse over an adjustable range of at least 30 ns minimum to 1000 [ns] maximum as measured at the half power (50% amplitude) points. The test set shall display the value of this parameter within 10% of its actual value or 10 ns whichever is larger. Step size requirements are 10 ns minimum. AR 99; see infra notes 33 & 35 and accompanying text. The FACTS Sheet template was appended to the solicitation as attachment 1. See AR 132-36. FACTS Sheets were required for each active or completed contract (with preferably at least one year of performance history) in the past three (3) years, that the offeror considers relevant in demonstrating its ability to perform the proposed effort. If the total number of such contracts exceeds four (4), the offeror shall address its four (4) most relevant contracts . . . . The offeror's present and past performance information may include data on efforts performed by other divisions or corporate management, if such resources will be used and significantly influence the performance of the proposed effort. Contracts listed may include those with the Federal Government, state and local Governments or their agencies, and commercial customers. Offerors that are newly formed entities without prior contracts or that do not possess relevant corporate past performance should submit FACTS Sheets for four (4) of their most recent/relevant contracts demonstrating the present and past performance for each of their key personnel. -411

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clear and concise responses "which correlate present and past performance with the requirements of this RFP. The FACTS Sheet submitted by the offeror must clearly describe the relevance of the effort to the work proposed by that entity." Id. at 127. The solicitation further explained that offerors were required to send attached "Present/Past Performance Questionnaires" to each contact identified in the offeror's FACTS Sheet. Id. The FACTS Sheet advised offerors that the Air Force "is not bound by the offeror's opinion of relevancy. The Government will perform an independent assessment of relevancy of the data provided or obtained." Id. at 135. 3. Evaluation Basis for Award Provision The solicitation also contained an Evaluation Basis for Award ("EBA") provision, which described the methodology upon which the requirements-type contract award would be determined. Id. at 129-31. The EBA indicated that the "acquisition will utilize the Performance/Price Tradeoff (PPT) source selection procedure to make an integrated assessment for a best value award decision." Id. at 129; see also id. at 93-94 (stating in the Presolicitation Notice that the PPT source selection would be utilized). It explained that [t]radeoffs will be made between present/past performance (hereafter referred to as performance) and price, with performance being considered significantly more important than price. While the Government will strive for maximum objectivity, the tradeoff process, by its nature, is subjective; therefore, professional judgment is implicit throughout the selection process. Id. at 129. Therefore, the EBA informed offerors that two criteria, present/past performance and price, would be traded off with the former accorded greater weight. Id. a. Performance Assessment The performance component of the PPT evaluation process "assess[ed] the confidence in the offeror's ability to successfully accomplish the proposed effort based on the offeror's demonstrated present and past work record." Id. The solicitation indicated that the Air Force "will evaluate the offeror's demonstrated record of contract compliance in supplying products and services that meet users' needs, including cost and schedule." Id. The Air Force would also assess the "currency and relevancy of the information, the source of the information, context of the data and general trends in the contractor's performance . . . ." Id. Additionally, it would "perform an independent determination of the relevancy of the data provided or obtained," including the offeror's present/past performance. Id. Like the FACTS Sheet, the EBA provision also advised offerors that the Air Force was "not bound by the offeror's opinion of relevancy." Id.

Id. at 127. -5-

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The EBA provision also explained that the Air Force would rely upon specific criteria in order to determine whether an offeror's present and past work record was "Very Relevant," "Relevant," "Somewhat Relevant," or "Not Relevant." "Very Relevant" present/past performance efforts involved the magnitude of work and complexities that are essentially what this solicitation requires. Examples . . . include the manufacture of handheld lightweight ultrasonic flaw detectors which contain all of the following features: color display; selectable spike/excitation and square wave pulser with adjustable voltage; capability to freeze and store screen displays; the capability to program, store, and recall instrument test parameter settings; pulse repetition frequency from 50 to 4000 Hz automatically coupled to the display and gates; and pulser modes of operation of pulse-echo, through-transmission, and pitch-catch; probes for: thickness, longitudinal wave, and shear wave. Id. "Relevant" present/past performance efforts involved less magnitude of work and complexities, including most of what this solicitation requires. Examples . . . include the manufacture of handheld lightweight ultrasonic nondestructive inspection equipment with multi-mode testing capability and probes and contain all of the following features: color display; capability to freeze and store screen displays; the capability to program, store, and recall instrument test parameter settings. Id. The EBA's definition for "Somewhat Relevant" present/past performance efforts involved much less magnitude of work and complexities, including some of what that [sic] this solicitation requires. Examples of such efforts include the manufacture of a microprocessor based inspection equipment with a display; capability to freeze and store screen displays; capability to program, store, and recall test settings and memory retention. Id. at 130. Finally, "Not Relevant" present/past performance efforts "do not involve any significant aspects of the ["Very Relevant," "Relevant," and "Somewhat Relevant"] definitions." Id. In addition, the EBA advised offerors that the phrase "magnitude of work and complexities," as utilized in these relevancy criteria, was defined as follows: NOTE: Magnitude of work and complexities includes, but is not limited to, logistical and programmatic considerations such as total quantity produced and/or quantity produced per month, duration of time, program dollar value, and type of contract. Id. -6-

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The EBA further explained that the Air Force could employ at least five approaches during its assessment of present and past performance. First, performance information could have been obtained from references provided by the offeror in the solicitation as well as from other sources, including overall customer satisfaction and conclusions of informed judgment. Id. Second, offerors were afforded an opportunity to address adverse past performance information "if the offeror has not had a previous opportunity to respond to the information." Id. Third, an offeror that "d[id] not have a past performance history deemed relevant to this solicitation . . . will receive an unknown confidence rating. The unknown confidence rating [would] be considered in the overall assessment for a best value decision." Id. Fourth, assessments evaluated present and past performance demonstrating compliance with FAR § 52.219-8, Utilization of Small Business Concerns. Id. Finally, the EBA indicated that offerors would receive an "overall confidence assessment rating": Rating High Confidence Definition Based on the offeror's performance record, the Government has high confidence that the offeror will successfully perform the required effort. Based on the offeror's performance record, the Government has significant confidence that the offeror will successfully perform the required effort. Based on the offeror's performance record, the Government has confidence that the offeror will successfully perform the required effort. Normal contractor emphasis should preclude any problems. No performance record identifiable (see FAR [§§] 15.305(a)(2)(iii) and (iv)).12

Significant Confidence

Satisfactory Confidence

Unknown Confidence

12

FAR § 15.305(a)(2)(iii)-(iv) provides:

(iii) The evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition. -7-

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Little Confidence

Based on the offeror's performance record, substantial doubt exists that the offeror will successfully perform the required effort. Based on the offeror's performance record, extreme doubt exists that the offeror will successfully perform the required effort.

No Confidence

Id. at 130-31 (footnote added). b. Cost/Price Assessment The cost/price assessment component of the PPT evaluation process evaluated each offeror's proposal for reasonableness, balanced pricing, and total evaluated price ("TEP"). Id. at 131. First, with respect to reasonableness, the Air Force anticipated the existence of adequate price competition. Id. Second, with respect to balanced pricing, the Air Force shall analyze offers to determine whether they are unbalanced with respect to separately priced line items or sub-line items. Prices proposed will be compared and evaluated to assure that a logical progression exists as related to price and quantity changes within each offeror's response to the pricing structure in the Schedule. Id. Third, with respect to TEP calculations, determinations would be made based upon the presence or absence of quantity ranges indicated on a Contract Line Item Number ("CLIN").13 Id.

(iv) In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance. 48 C.F.R. § 15.305(a)(2)(iii)-(iv). For example, in the absence of quantity ranges, the evaluated price was calculated by multiplying the proposed unit price by the corresponding fixed quantity, yielding a TEP. Where quantity ranges were indicated, the evaluated price was calculated by multiplying each proposed unit price by the corresponding quantity range, which yielded a total price for that line item. The sum of these evaluated prices for each line item represented the TEP. AR 131. -813

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c. Technical Evaluation The solicitation did not set forth a technical evaluation that the Air Force would utilize to assess the offerors' proposed UFD products. See id. at 129-31. Instead, the solicitation required that offerors "provide . . . [a UFD] in accordance with the Product Description . . . dated 12 April 2007 referenced in this document." Id. at 105. As stated above, the Product Description established the "minimum performance and technical requirements" for the proposed UFDs. Id. at 96; supra Part I.A.1. Technical evaluations were complete once the Air Force determined that the proposed UFDs satisfied these minimum performance and technical requirements, and the Air Force concluded that "[a]ll of the [UFDs] being proposed satisfy the requirements of our [Product Description]." AR 690. 4. The Proposals Following the April 20, 2007 posting of the Air Force's solicitation on the FBO website, several prospective offerors submitted questions regarding the specifications contained in the Product Description. See id. at 155-56, 162-63, 169, 170-72, 186-88, 189-90. These questions, and the corresponding answers supplied by the Air Force Contracting Specialist, were made available on the FBO website. Id. at 95, 162-63. GE submitted a series of technical questions based upon the Product Description. Id. at 171. One question GE submitted asked the importance of or application for the lower end 30 ns requirement contained within the pulse width provision, section 2.4.2.1, in the Product Description. Id.; supra note 10. The Air Force responded to GE's question by stating that the "pulse width/shape of 30[ ]ns delivers the frequency suitable for AF ultrasonic nondestructive inspection requirements." AR 182. But see infra Part I.A.4.a (permitting a deviation from that requirement). Additional questions and answers, compiled on May 8, 2007, were posted on the FBO website on May 9, 2007. AR 95, 181-83, 195-97. Precision, GE, and a third offeror submitted proposals on or before May 24, 2007, the closing date set by the Air Force for receipt of bids. Id. at 152, 749. Shortly thereafter, the Air Force commenced issuance of Evaluation Notices ("ENs"), which provided initial findings and afforded an opportunity for submission of proposal revisions, to the offerors. Id. at 546-609. The Air Force concluded discussions on the bids with offerors on September 7, 2007, and final proposals were due no later than September 12, 2007. Id. at 350-51, 522-23. Precision, GE, and a third offeror submitted final proposals. Id. at 779-86. a. Air Force Evaluation of GE's Proposal GE submitted its proposal on May 16, 2007. Id. at 315. In conformity with the proposal requirements, see id. at 126, GE accompanied its submission with a cover letter delineating exceptions to the Product Description and contract clauses. Id. at 315. One exception GE made concerned pulse width, the subject of the above-described question GE previously submitted to the Air Force. Specifically, GE represented that its proposed product, the USN 60 pulser, "has a -9-

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voltage control from 50 to 450 volts in 10-volt steps and achieves 50 n[s] to 1,000 n[s] over that entire range. This range of pulser width adjustment allows for optimum performance for the transducers in this specification." Id. at 317; cf. supra note 10. The Air Force acknowledged that GE's exception was a deviation from the specifications contained in the Product Description; however, it noted that GE was "proposing . . . an upgrade" that had already been used by the Air Force with success. AR 67. The Air Force therefore determined that a "deviation from 30[ ns] to 50 n[s] could be granted," id., and drafted a revision to the product description. Id. at 73-79. On July 13, 2007, the Air Force issued Amendment 0003 modifying the pulse width requirement contained in the Product Description from "at least 30 ns minimum to 1000 n[s] maximum," id. at 99, to "at least 50 ns minimum to 1000 n[s] maximum."14 Id. at 154, 944. GE submitted four present and past performance FACTS Sheets with its proposal that it believed were relevant. Id. at 293-99, 307-13, 325-31, 341-47. Each FACTS Sheet for these previous contracts described firm-fixed price contracts. Id. The Air Force determined that two of the four contracts exceeded the three-year time frame permitted under the solicitation.15 See id. at 293-99, 325-31, 694-701, 783; supra note 11. The remaining two contracts the Air Force considered involved the manufacture of UFDs. AR 307-13, 341-47, 759-60. GE's FACTS Sheet for the first firm-fixed price contract indicated that it was for the manufacture of [ ] UFDs for the Department of the Navy ("the Navy") in April 2007 ("the 2007 GE contract").16 Id. at 307-13. The value of this contract at completion was [ ]. Id. at 307, 310. In the space provided to identify unique aspects of the contract, GE described the key features of its product, the USN 60 pulser, with specificity. Id. at 311. GE completed the FACTS Sheet relevancy table for the 2007 GE contract in its entirety and indicated that the program was similar to the proposed effort contained in the solicitation. Id. at 313. GE's FACTS Sheet for the second firm-fixed price contract that the Air Force considered indicated that it was for the manufacture of [ ] UFD for the Navy between January and April

Amendment 0001 modified the closing date for basic bids from May 21, 2007 to an indefinite date. AR 151. Amendment 0002 modified the closing date for solicitations from an indefinite date to May 24, 2007. Id. at 151-52. One of these contracts that was not considered initially received a "Very Relevant" determination by the Air Force. AR 692. This contract was not considered in the final performance report. Id. at 759-60. Under the 2007 GE contract, the Navy purchased the same model UFD that GE proposed under this solicitation. See AR 308, 317. -1016 15

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2004 ("the 2004 GE contract").17 Id. at 341. The value of this contract at completion was [ ]. Id. In the space provided to identify unique aspects of the contract, GE again described the key features of its USN 60 pulser product with specificity. Id. at 345. GE completed the FACTS Sheet relevancy table for the 2004 GE contract in its entirety and indicated that the program was similar to the proposed effort contained in the solicitation. Id. at 347. Not bound by GE's opinion of relevancy contained in its FACTS Sheets, see id. at 135, the Air Force's Performance Confidence Assessment Group ("PCAG") made its own relevancy assessment. The PCAG determined that both of GE's previous contracts were "Somewhat Relevant." Id. at 549, 759-60. The PCAG final performance report elaborated upon these determinations. Id. at 759-60. With respect to the 2007 GE contract, the PCAG found: [ ]. Id. at 759. But see id. at 129 (indicating in the EBA that these features were considered "Very Relevant"). The PCAG explained that [ ]. Id. at 759. As a result, the 2007 GE contract was deemed "somewhat relevant because in overall terms of complexity and magnitude the effort involved the manufacture of only [ ] with an approximate value of [ ]." Id. The PCAG made the same determination for the 2004 GE contract. It found that the effort contained all the same features as the 2007 GE contract; however, [ ]." Id. at 760. As a result, the 2004 GE contract was deemed "somewhat relevant because in overall terms of complexity and magnitude the effort involved the manufacture of only [ ] with an approximate value of [ ]." Id. The administrative record indicates that the Air Force received six present/past performance questionnaires for GE. Id. at 694-719. But see id. at 760 (indicating that two questionnaires were received). Of these, three were not considered because they were outside the three-year performance history period, id. at 694-702, 707-710; supra note 11. Two were not considered because they evaluated GE in the capacity of vendor. AR 703-06, 711-14. The Air Force considered the remaining questionnaire, which it described as rating GE's "performance as excellent." Id. at 760. The Air Force also conducted an interview, which described a favorable performance by GE. Id. at 719, 760. GE also submitted previous government and commercial sales information for its USN 60 pulser product. Id. at 333-34. While GE listed [ ] government sales, the PCAG determined that only [ ] occurred within the three-year performance history period specified in the solicitation. Id. at 334, 760. It concluded that, in terms of complexity and magnitude, those [ ] efforts "involved quantity ranges from [ ] units with an approximate value ranging from [ ] to [ ] per effort; total units sold within the three year period was [ ] with an approximate value of This contract also involved the same model UFD that GE proposed under this solicitation. See AR 317, 342. -1117

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[ ]." Id. at 760-61. While GE listed [ ] commercial sales, the PCAG determined that only [ ] were within the three-year performance history period specified in the solicitation. Id. at 333. It concluded that, in terms of complexity and magnitude, those [ ] efforts "involved quantity ranges from [ ] units with an approximate value ranging from [ ] to [ ] per effort; total dollar value for the [ ] efforts is approximately [ ]." Id. at 761. As a result, the PCAG found that these past efforts "involved little of the magnitude of work and complexities that this solicitation requires." Id. In summary, the PCAG stated: [ ]. Based on all the information set forth herein, the PCAG has Satisfactory Confidence that based on the offeror's performance record[,] the Government has confidence that the offeror will successfully perform the required effort.18 Id. at 762 (footnote added). The same evaluation was made in the Air Force's Source Selection Decision Document ("SSDD"). Id. at 783. The PCAG's Final Performance Report also identified GE's strengths. Specifically, the Air Force noted positive customer comments about the quality and intuitive operation of its product as well as its customer support. Id. at 763. The Air Force identified no weaknesses. Id. With regard to the Air Force's cost/price evaluation, GE received a total of five pricing EN's. See id. at 576-86, 784. The Air Force determined that its ENs "were answered satisfactorily" by GE. Id. at 791. GE's initial proposal, submitted in May 2007, was for [ ]. Id. at 788. Its total evaluated price before release of the final proposal request in July 2007 was increased to $3,867,120, and that amount remained unchanged in its September 2007 final proposal. Id. The Air Force's final price competition memorandum indicated that GE's proposal was balanced and within the competitive range. Id. at 791. b. Air Force Evaluation of Precision's Proposal Precision initially submitted its solicitation proposal via electronic mail on May 21, 2007. Id. at 191. That submission highlighted features of its proposed UFD unit and included an annotated copy of the Product Description, which indicated that Precision's product met or exceeded the technical specifications. Id. at 191, 445-51. Because Precision failed to follow the format required by the solicitation, the Air Force requested that Precision "review the RFP

On July 19, 2007, GE responded to the Air Force's ENs. AR 548-75. It indicated that it "agree[d] with the Government's overall confidence level of `satisfactory' as it is based on the limited past effort data we submitted in our bid." Id. at 549. -12-

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proposal requirements and the evaluation basis for award and prepare [its] response in accordance with the directions." Id. at 191. Precision resubmitted its solicitation proposal on May 21, 2007.19 Id. at 386. In conformity with the proposal requirements, see id. at 126, Precision accompanied its submission with a cover letter. Id. at 386. Precision indicated that its proposal contained "no product exceptions." Id. It further indicated in its cover letter that "[a]ll criteria requested in [the Product Description are] met or exceeded" by its proposed UFD unit. Id. Additionally, Precision noted: "[Precision] would also like to bring to your attention that the relevancy of the Present/Past Performance has historically been for other products. The color UT unit offered . . . is a new product for us." Id. Precision submitted five present and past performance FACTS Sheets with its proposal. Id. at 418-42. But see supra note 11 (indicating that offerors shall address only their four most relevant contracts). Four of the five FACTS Sheets concerned firm-fixed price contracts. AR 496-520. The fifth FACTS Sheet identified a time-and-materials contract,20 which the Air Force did not consider.21 Id. at 631-35, 781. Precision's initial FACTS Sheets either provided limited or no information about the four firm-fixed price contracts. Id. at 418-42. Consequently, the Air Force issued an EN to Precision in which it stated that Precision "failed to complete the FACT[S S]heet[s] for these efforts; therefore, the PCAG has determined these efforts not relevant at this time." Id. at 596. The Air Force determined that these four contracts were not relevant and "assessed an unknown confidence level that [Precision] will successfully perform the [UFD] program because the efforts involved little or none of the magnitude of work and complexities that this solicitation requires pursuant to the definitions of relevancy provided in the RFP." Id. The EN also advised Precision that it may "provide additional/revised information on the efforts previously submitted which may impact the Government's determination of relevancy, or want to substitute efforts for one(s) already submitted which may impact the Government's

Precision's cover letter indicated that its proposal was dated May 21, 2007; however, Precision represents in its statement of facts accompanying its Cross-Motion for Judgment on the Administrative Record ("Pl.'s Mot.") that it submitted its proposal on May 23, 2007. Regardless of the discrepancy between these two dates, Precision's proposal was submitted before the May 24, 2007 closing date. See supra note 14. A time-and-materials contract "provides for acquiring supplies or services on the basis of (1) direct labor hours at specified fixed hourly rates that include wages, overhead, general and administrative expenses, and profit and (2) materials at cost, including, if appropriate, material handling costs as part of material costs." 48 C.F.R. § 16.601. Since the Air Force did not consider the time and materials contract, information pertaining to and contained within Precision's fifth FACTS Sheet for that contract is not discussed here. AR 631-35, 781. -1321 20

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determination of relevancy . . . ." Id.; see also id. at 751 (noting that the EN permitted Precision to "review its performance record for efforts that have any relevance pursuant to the relevancy definitions in the RFP and submit such for evaluation"). The Air Force stated that Precision's response to this EN "did not indicate agreement or disagreement with the Government's overall confidence assessment determination." Id. at 751. Precision subsequently provided a spreadsheet of past and present performance information, but it did not provide completed FACTS Sheets. Id. at 597, 609. Because Precision "failed to enclose completed FACT[S S]heets," id. at 751, the Air Force issued a subsequent EN requiring Precision to provide "complete FACT[S S]heets for each of [the] efforts submitted. Additionally[,] the offeror will identify which Present/Past Performance Questionnaire goes with which effort." Id. at 609. Precision subsequently submitted revised, completed FACTS Sheets. Id. at 611-35. The revised FACTS Sheets Precision submitted involved purchase orders for high speed film delivered to four Air Force bases. Id. at 611-30. Precision's FACTS Sheet for the first firmfixed price contract that the Air Force considered indicated that it was for an order of [ ] discontinued high speed film rolls.22 Id. at 615. The period of performance spanned from November 1 through November 23, 2005, id. at 611-12, and the estimated value of this contract at completion was [ ]. Id. at 611. But see id. at 613 (indicating an estimated value of [ ] at contract completion). Precision noted that the product was discontinued and that it was no longer available. Id. at 612. Although the orders were filled on time by Precision, "due to manufacturer stock depletion," the order "was closed short 19 [film] rolls." Id. at 611. Precision added: "The items supplied were different than to [sic] the proposed effort[;] however[, the contract] relates in the fashion that delivery dates were met and no issues were involved." Id. at 612. Precision completed the FACTS Sheet relevancy table for this contract and noted that most of the efforts were "n/a," or not applicable, to the effort proposed in the solicitation. Id. at 615. Precision's FACTS Sheet for the second firm-fixed price contract that the Air Force considered indicated that it was for an order of [ ] discontinued high speed film rolls. Id. at 617-18; cf. id. at 616 (indicating that the customer increased quantity of film rolls from [ ] to [ ] and from [ ] to [ ]). The period of performance spanned from November 4 through December 17, 2004, id. at 617, and the estimated value of this contract at completion was [ ]. Id. at 616, 618. Precision noted that these film rolls were "discontinued and availability would be no longer [sic]. We were able to fulfill the quantities minus 19 due to the manufacturing `end of life' for this item." Id. at 617. Precision added: "The items supplied were different than to [sic] the proposed effort[;] however[, the contract] relates in the fashion that delivery dates were met and no issues were involved." Id. Precision completed the FACTS Sheet relevancy table for this contract and noted that most of the efforts were "n/a," or not applicable, to the effort proposed in the solicitation. Id. at 620.

Precision indicated that this order, originally placed for [ ] rolls, was subsequently increased to [ ] by the customer. AR 611. -14-

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Precision's FACTS Sheet for the third firm-fixed price contract that the Air Force considered indicated that it was for several orders of discontinued high speed film rolls totaling [ ] units.23 Id. at 622-23. The period of performance spanned from March 24 through June 6, 2005,24 id., and the estimated value of this contract at completion was [ ]. Id. at 621, 623. Precision indicated that this order "was shipped in full, including customer's additional quantity requests." Id. at 622. It also stated that "[t]he product supplied is different but we are able to establish [that] the delivery time goals were met along with exceeding the original order quantity and fulfilling additional items per the customer's request." Id. Precision completed the FACTS Sheet relevancy table for this contract and noted that most of the efforts were "n/a," or not applicable, to the effort proposed in the solicitation. Id. at 625. Precision's FACTS Sheet for the fourth firm-fixed price contract that the Air Force considered indicated that Precision was the subcontractor for shipping orders of discontinued high speed film rolls totaling [ ] units. Id. at 626-28. The period of performance spanned from November 1 through December 10, 2004, id. at 627-28, and the estimated value of this contract at completion was [ ]. Id. at 626. Precision indicated that the "[m]anufacturer was doing last fulfillments of this product and we were able to supply the customer with last time purchases." Id. at 627. It also stated that "[i]tems supplied were different than to [sic] the proposed effort[;] however[, the contract] relates in the fashion that delivery dates and quantities ordered were met and exceeded." Id. Precision completed the FACTS Sheet relevancy table for this contract and noted that most of the efforts were "n/a," or not applicable, to the effort proposed in the solicitation. Id. at 630. In the space provided to identify unique aspects of these contracts, Precision noted on all of the FACTS Sheets it submitted that it was able to obtain a large portion of this film from the manufacturer prior to the discontinuation of the product. We were one of the only resellers of this product at that time. We had the capabilities to track the progress of the orders and also monitor the manufacturer's supply to keep the customer informed. Id. at 613; see also id. at 618-19, 623, 628. Not bound by Precision's opinion of relevancy contained in its FACTS Sheets, id. at 135, the Air Force's PCAG made its own relevancy assessment. In its Final Performance Report, the PCAG determined that all four of Precision's previous contracts were "Not Relevant." Id. at 596, 749-51. It made the following determination for all of Precision's past performances:

The customer placed an initial order of [ ] rolls, followed by additional orders of [ ] and [ ] rolls. AR 622. The signed contract was returned to Precision on March 28, 2005. Delivery estimation from the manufacturer was set between four and six weeks. AR 622. -1524

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[ ]. The PCAG determined this contract to be not relevant. Id. at 749-51. The Air Force also indicated that, after it submitted ENs to Precision, Precision supplied information about "[ ] additional efforts for film sales totaling approximately [ ]; this additional data did not add to nor detract from the initial confidence assessment." Id. at 751. The PCAG also stated that the spreadsheet Precision submitted, see id. at 609, summarized Precision's FACTS Sheets, included information about the time and materials contract, and detailed contracts "for film sales in lieu of listing all contracts that the offeror is performing or has performed in the past three years. [ ] contracts were identified for film sales . . . [and t]he quantities ranged from [ ] each to [ ] each with dollar values from [ ] to [ ]." Id. at 751. The administrative record indicates that the Air Force received three present/past performance questionnaires for Precision. Id. at 720-31. Two of the three questionnaires indicated that Precision was a vendor/supplier. Id. at 720-23, 728-31. The remaining questionnaire rated Precision as "exceptional" in all categories.25 Id. at 726. In summary, the PCAG stated: All four efforts described on [Precision's] FACTS Sheets are considered not relevant to the instant requirement because the submitted efforts were for film sales. [ ]. [ ]. The PCAG has Little Confidence that[,] based on the offeror's performance record[,] substantial doubt exists that [sic] the offeror will successfully perform the required effort. Id. at 752. The same evaluation was made in the Air Force's SSDD. Id. at 781. With regard to the Air Force's cost/price evaluation, Precision received a total of three pricing ENs. See id. at 594-95, 599-603, 783. The first two ENs prompted Precision to revise its pricing for several CLINs and Sub-CLINs. See id. The Air Force issued a third EN wherein it analyzed Precision's pricing revisions from the previous two EN's and indicated several disparities. Id. at 607, 783. In response to this third EN, Precision indicated that no errors were made. Id. Precision's initial proposal, submitted in May 2007, was for [ ]. Id. at 788. Its total evaluated price before release of the final proposal request in July 2007 was increased to [ ], and its final proposal revision in September 2007 was reduced to $3,101,575. Id. The SSDD indicated that Precision's pricing for four CLINs were not balanced. Id. at 785. But see id. at 791 (indicating, in the Air Force's final price competition memorandum, that all proposals, including Precision's, were balanced and within the competitive range). The information contained in the questionnaire is not discussed in the PCAG's Final Performance Report. See AR 749-52. -1625

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B. Award On September 14, 2007, the Air Force issued its SSDD, which analyzed the three submitted proposals. Id. at 779-86. The SSDD reiterated that the acquisition would "utilize the Performance/Price Tradeoff (PPT) source selection procedure to make an integrated assessment for a best value award decision; tradeoffs would be made between performance and price with performance being considered significantly more important than price." Id. at 786. The SSDD evaluated the offerors' past and present performance and adopted the findings contained in the PCAG's final performance report. See id. at 746-63, 779-83. The following summarizes the offerors' performance assessments: Offeror Precision Images, LLC GE Inspection Technologies, LP Third Offeror Id. at 780-83. The SSDD also evaluated each offeror's cost/price. Id. at 783. Prices were evaluated in three areas: reasonableness, total evaluated cost/price, and balance. Id. Each offeror's price was reasonable. Id. at 785. The following were the total evaluated prices: Offeror Precision Images, LLC GE Inspection Technologies, LP Third Offeror Total Evaluated Price $3,101,575 $3,867,120 $5,437,750 Present and Past Performance Evaluation Little Confidence Satisfactory Confidence Satisfactory Confidence

Id. at 785. The SSDD summarized that Precision "was assessed with a little confidence rating with its price being the lowest." Id. GE was "assessed with a satisfactory confidence rating with its price being the second lowest." Id. The third offeror "was assessed with a satisfactory confidence rating and had the highest price among the offerors." Id. Because the performance assessment determined the level of confidence the Air Force had in an offeror's ability "to successfully accomplish the proposed effort based on the offeror's demonstrated past and present work record," the Air Force found that "it would be implausible . . . to select an offeror with a little confidence rating over one that was assigned a -17-

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confidence rating of satisfactory." Id. The Air Force "look[ed] closely" at the confidence rating and proposed pricing. Id. Precision, the SSDD concluded, "failed to demonstrate through its recent, current, and relevant performance history, that it has the experience to successfully perform the complexity, magnitude, and scope of the [UFD] effort." Id. Like the third offeror, GE was assessed a "satisfactory assessment" but, unlike the third offeror, proposed "the lowest price [between] the two." Id. The SSDD concluded that, "[b]ased upon the information presented . . . and in adherence to the `Evaluation Basis for Award' provision in the RFP, the best value award for this solicitation is determined to be GE . . . ." Id. at 786. On September 26, 2007, the Air Force awarded the contract to GE. Id. at 787. II. PROCEDURAL HISTORY The Air Force notified Precision by letter on September 26, 2007, that its proposal "was not the most advantageous to the Government. The Government's decision is based on the factors established in the [EBA]." Id. at 907. It informed Precision that, pursuant to FAR § 15.506(a)(1), Precision could request a debriefing within three days after receipt of that letter. Id. Precision made its request for a debriefing by electronic mail on September 27, 2007. See id. at 911. The Air Force provided Precision with a written debriefing, which summarized its evaluation of Precision's proposal and stated that the Air Force's selection "was made based upon criteria specified in the provisions of the RFP, the integrated assessment of the evaluation results of all the proposals submitted, and the capability of GE . . . to fulfill the subject requirements." Id. at 914. On October 3, 2007, Precision filed its Post-Award Procurement Protest Complaint and accompanying motion for a preliminary injunction in this court. The court entered a protective order on October 4, 2007. GE, pursuant to RCFC 24(a)(2), filed an unopposed motion to intervene on October 4, 2007, which the court granted that day. In a status report filed on October 5, 2007, defendant represented that it would not oppose Precision's motion for a preliminary injunction and that it would suspend performance of the contract awarded to GE conditioned upon an expedited briefing schedule.26 On October 9, 2007, the court held a status conference with the parties and, in accordance with the parties' proposal, directed defendant to file the administrative record by October 10, 2007.27 The filing dates for the parties' legal memoranda were suggested by the parties and adopted by the court. On

October 5, 2007, GE filed its opposition to plaintiff's motion for a preliminary injunction. Defendant filed the administrative record on October 10, 2007. On October 17, 2007, the court granted defendant's motion to amend the administrative record to include a completed certification containing the contracting officer's signature. -1827

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October 19, 2007, defendant filed its Motion for Judgment on the Administrative Record ("Def.'s Mot."), plaintiff filed its Cross-Motion for Judgment on the Administrative Record, and GE filed Intervenor's Memorandum in Support of Defendant's Cross-Motion for Judgment on the Administrative Record and in Opposition to Plaintiff's Cross-Motion ("Def.-Inter.'s Mem."). On October 24, 2007, Precision filed its Response to the Cross-Motion for Judgment, and defendant filed its Response in Support of Its Motion For Judgment Upon the Administrative Record ("Def.'s Resp.").28 On October 29, 2007, Precision and defendant filed reply briefs ("Pl.'s Reply" and "Def.'s Reply," respectively). The court held a hearing on the parties' cross-motions on November 5, 2007 ("Hr'g Tr."). III. THE PARTIES' ARGUMENTS29 A. Plaintiff's Assertions Precision asserts that the Air Force awarded the contract to GE based upon use of a prohibited performance/price tradeoff source selection procedure. Pl.'s Mot. 19. Specifically, Precision claims that the Air Force was constrained by statutory mandate to determine only price and "other factors included in the solicitation" when evaluating the proposals it received. Id. at 22 (quoting 10 U.S.C. § 2305(b)(4)(C)). The only other factor contained in the solicitation that the Air Force was required to consider, Precision maintains, was each offeror's past performance. Id. The Air Force unlawfully awarded the contract to GE, Precision asserts, based upon an improper assessment of Precision's past performance. Id. at 19-20. The Air Force determined that Precision had no identifiable "relevant" performance history;30 however, Precision argues that "it is only manufacturers of commercial [UFDs], not distributors, who may receive from the Air Force overall Performance confidence assessments of `Satisfactory confidence' or better." Pl.'s Reply 5. Because Precision was a distributor and not a manufacturer, Precision believes that it was unable to receive a past performance rating "no better than `Unknown Confidence.'" Id. at 6.

Defendant filed a corrected copy of its response on October 25, 2007. Although both responses are substantively identical, the court shall cite to the October 25, 2007 response. All references to page numbers in the parties' filings are to those supplied by the court's electronic case filing system. Precision acknowledges that "there is no such identifiable `relevant' Performance by Precision Images, either as submitted by Precision Images with its Initial Competitive Proposal, or as submitted by Precision Images in responses to Discussions, or as found by the Air Force Performance Confidence Assessment Group." Pl.'s Mot. 20. -1930 29

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Because the Air Force determined that Precision had no identifiable "relevant" performance history, Precision argues that it was entitled to an "Unknown Confidence" rating based upon the terms of the solicitation, 41 U.S.C. § 405(j)(2),31 and FAR § 15.305(a)(2)(iv).32 Pl.'s Mot. 20-21. Precision acknowledges that an "Unknown Confidence" rating can be considered by the Air Force in its overall assessment of a best value determination; however, Precision contends that the terms of the solicitation, as well as the applicable statutes and regulations, preclude the Air Force from trading off an "Unknown Confidence" rating against a favorable performance rating. Id.; Pl.'s Resp. 5. Instead of receiving an "Unknown Confidence" rating based upon its status as a distributor, Precision argues that the Air Force engaged in a cursory evaluation of its bid and capabilities in order to assess it a "Little Confidence" rating. Pl.'s Mot. 21. Precision also contends that the "Little Confidence" rating it received was "arbitrary and capricious because this overall confidence assessment is not supported by the Administrative Record," id. at 19; was made without justification, see Pl.'s Reply 10-11; and did not constitute the best value, Pl.'s Mot. 21-23. Additionally, according to Precision, the improper "Little Confidence" rating constituted the "basis" upon which the Air Force traded off Precision's past performance against a "substantial Price premium" for GE's product, which Precision alleges is of "lesser quality" than the product it proposed.33 Id. at 19. As a result, Precision claims that the award to GE did not

Section 405(j) governs the policy regarding consideration of contractor past performance. Subsection (2) provides: In the case of an offeror with respect to which there is no information on past contract performance or with respect to which information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance. 41 U.S.C. § 405(j)(2) (2000).
32

31

For the text of FAR § 15.305(a)(2)(iv), see supra note 12.

In its reply brief, Precision also argued that, because the Air Force failed to enumerate any specific advantages it would gain by awarding GE the contract over Precision, no basis exists for the Air Force's decision to pay a substantial price premium for GE's product of lesser quality, which could not constitute the best value to the Air Force. Pl.'s Reply 10-11. Precision's allegation that GE's product is of "lesser quality" stemmed from GE's exception to the Product Description's pulse width provision in which GE requested­and was granted­a deviation from 30 ns to 50 ns. See AR 67, 317; supra Part I.A.4.a; supra note 10. The Air Force subsequently issued Amendment 0003, modifying the pulse with requirement. AR 99. Because Precision believed its proposed product satisfied all of the Product Description's requirements, including the original pulse width provision, see id. at 191, 445-51, Precision argued that the Air Force's issuance of Amendment 003 constituted an impermissible accommodation for GE's product. -20-

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represent the best value to the government. Id. According to Precision, the Air Force was required, when faced with no relevant past performance history for Precision, to award the contract to Precision based solely upon price. Pl.'s Resp. 6-10. But for the Air Force's "unlawful charade," Precision contends that it "would have received [the] Award of the proposed Contract . . . ." Id. at 10. Rather than requesting that the court reopen the solicitation, a remedy that Precision maintains would unfairly prejudice it as a distributor that cannot set its own pricing for UFDs, Pl.'s Reply 9, Precision requests that the court order a directed award. Id. at 11-13; Pl.'s Resp. 8-10. A directed award to Precision is appropriate here, Precision maintains, because the Air Force's performance evaluation was unlawful, thereby leaving price­and Precision's lowest bid­as the sole criterion upon which a best value award should be based.34 Pl.'s Resp. 6-10. B. Defendant's and Defendant-Intervenor's Responses Defendant argues that the Air Force properly evaluated Precision's proposal under the standards set forth in the solicitation and in compliance with statutory and regulatory requirements. Def.'s Mot. 18-23. Specifically, defendant contends that Precision "made available to the Government performance information that allowed the Air Force to make a relevancy determination of that information in accordance with the terms of the solicitation." Id. at 21. Moreover, defendant argues that the administrative record demonstrates that the Air Force "properly applied the solicitation's stated relevancy criteria when it assessed Precision an overall performance rating of `Little Confidence.'" Id. at 22. The administrative record demonstrates, defendant asserts, that the Air Force's "best value tradeoff rationale was reasonable and sufficiently documented."35 Def.'s Resp. 13. Therefore, contends defendant, Precision's

Pl.'s Mot. 21-22. While defendant argued that Precision's challenge to the terms of the solicitation was untimely, Def.'s Mot. 28; Def.'s Resp. 14-15, Precision acknowledged during oral argument that "not one of these [proposed UFDs is] better than the other. The Air Force has admitted that . . . all these three things . . . are equal." Hr'g Tr. 40:1-4. Therefore, based upon Precision's counsel's concession at oral argument, it is clear that Precision has abandoned its argument that GE's UFD is inferior to Precision's UFD. Thus, the court need not address these arguments. In the absence of a directed award, Precision requests that the court declare that only its proposal may be selected by the Air Force. Pl.'s Reply 10; see infra note 38. Defendant also argues that Precision's allegation that GE's product was an "item of lesser quality" is untimely, not relevant, and unsupported by the administrative record, which demonstrates that GE's product satisfied the requirements listed in the Product Description. Def.'s Mot. 26-27; see supra note 33. -2135 34

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suggestion that the Air Force engaged in a bad faith consideration of its proposal lacks merit.36 Id. Defendant also argues that Precision erroneously interpreted the solicitation terms to suggest that the Air Force assessed a performance rating based solely upon manufacturing experience. Def.'s Mot. 21. According to defendant, the relevancy definitions contained in the solicitation instructed the Air Force "to take into account a broad array of performance criteria" of which manufacturing experience or capabilities constituted only one part. Id. at 19. Defendant therefore argues that "nowhere is it stated that to be considered relevant an example must demonstrate some product manufacturing capability or experience." Def.'s Resp. 9. In fact, defendant emphasizes that none of the present/past performance questionnaires submitted by the offerors in Volume II of their proposals requested information about manufacturing capabilities. Def.'s Reply 3. Moreover, defendant argues that Precision "submit[ted] performance examples that [Precision] considered to be relevant" and "[a]t no time . . . did Precision state to the Government that under [its] interpretation of the solicitation's relevancy requirements [it] had no available record of relevant past performance information to submit­i.e. no manufacturing experience." Def.'s Mot. 23. Therefore, defendant maintains that any claim by Precision alleging it was penalized for not manufacturing UFDs lacks merit. Id. at 20. Alternatively, defendant argues that, even if the Air Force erred by assigning Precision a "Little Confidence" rather than a neutral "Unknown Confidence" rating, Precision fails to show any prejudice. Def.'s Mot. 23-27; Def.'s Resp. 6-7; Def.'s Reply 3-6. Rather, defendant argues that Precision "fails to devote a single sentence in its brief to explaining how it was prejudiced by not receiving its argued-for `Unknown Confidence' performance assessment." Def.'s Resp. 6. Moreover, Precision fails to explain why it would have a substantial chance of receiving the contract had it been assessed an "Uncertain Confidence" performance assessment. Id. at 7. Defendant also disputes Precision's contention that if Precision were assessed an "Unknown Confidence" rating, then the Air Force would have been precluded from considering GE's positive "Satisfactory Confidence" past performance rating and would have been required to award the contract to Precision based solely on price. Def.'s Reply 4. An award based solely upon the lowest-priced proposal, defendant contends, "would negate the great discretion and judgment agency officials are afforded in determining which products and services best suit the government's needs." Def.'s Mot. 27. Furthermore, defendant contends, Precision's argument would vitiate the entire procurement process because the acquisition specifically instructed offerors that the Air Force would utilize a performance/price tradeoff source selection procedure, not a procedure akin to a sealed bid where price alone would be determinative. Def.'s Reply 4-5.

Although Precision previously asserted that the Air Force "concocted" a tradeoff, Pl.'s Mot. 23, plaintiff's counsel represented during oral argument that Precision did not believe the Air Force acted in bad faith. Hr'g Tr. 23:1-2. -22-

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According to defendant, because the performance/price tradeoff procedure required that the Air Force make a best value award decision, that decision "is afforded considerable discretion when determining which proposal represents the best value to the government." Def.'s Mot. 24. Even were Precision assigned an "Unknown Confidence" rating, defendant argues that the Air Force's best value award decision was appropriate because the "Unknown Confidence" rating Precision seeks ranks lower than the "Satisfactory Confidence" rating GE received, and Precision has failed to demonstrate both that it was prejudiced by the assessment it was assigned and that it had a substantial chance of receiving the award with an "Unknown Confidence" rating. Id. at 2425; Def.'s Resp. 7. Defendant argues that Precision has neither demonstrated success on the merits nor has attempted to explain how it will suffer irreparable injury in the absence of injunctive relief. Def.'s Mot. 28-30; Def.'s Resp. 15. Instead, defendant argues that it would suffer substantial harm if injunctive relief is awarded to Precision because the awarded contract provides important maintenance devices "necessary to support the operations of the Air Force, joint DoD organizations, and FMS customers currently engaged in overseas operations." Def.'s Mot. 30. Lastly, defendant argues that if the court determines that the Air Force committed prejudicial error, then Precision is not entitled to a directed award. Def.'s Reply 6. A directed award, defendant argues, is "conceivable only where the procurement officials are left with no discretion in the award process following a court's decision on the procurement protest's merits." Id. at 7. Defendant emphasizes that here, in a competitively negotiated procurement, the Air Force exercised considerable discretion "based on an evaluative judgment reflecting a comparative assessment of the competing proposals and trade-offs between price and non-price factors . . . ." Id. at 8. Thus, if the court determines that a prejudicial error occurred, then it should permit the Air Force to make a new best value tradeoff decision. Id. at 8-9. Similarly, GE argues that Precision was not prejudiced by the Air Force's determination because it cannot prove that it had a substantial chance of being awarded the contract with an "Unknown Confidence" rating. Def.-Inter.'s Mem. 2-7. According to GE, the administrative record reflects the Air Force's "affirmative confidence in GE" and demonstrates that "even if [Precision] had received an `Unknown' rating[,] there is not a substantial chance it would have been awarded the contract." Id. at 5. Moreover, GE emphasizes that the "Satisfactory Confidence" rating received by both GE and the third offeror "was a favorable rating . . . not equal to a `Neutral' or `Unknown' confidence rating," id. at 4 n.2, and the court may consider satisfactory performance ratings as superior to neutral, unknown ratings. Id. at 2, 4. GE maintains that the "relative lack of confidence the [Air Force] had in Precision Images will not be mitigated simply by changing its rating to `Unknown Confidence.'" Id. at 5. Consequently, GE believes that Precision cannot demonstrate any prejudice, which is a required element both for standing and to prevail on the merits. Id. at 2. Therefore, according to GE, Precision lacks standing to pursue this post-award bid protest. Id.

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IV. LEGAL STANDARDS A. Standard of Review 1. Jurisdiction The United States Court of Federal Claims ("Court of Fed