Free Published Opinion - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
No. 05-1186C (Filed Under Seal: May 31, 2006) (Re-Issued: May 31, 2006) TO BE PUBLISHED* *************************************** * COMPREHENSIVE HEALTH * Administrative Procedure Act; SERVICES, INC., * 5 U.S.C. §§ 701, et seq.; * Duty of Good Faith, Fair Dealing, Plaintiff, * and Honest Consideration; * Motion for Judgment on the Administrative v. * Record, RCFC 56.1; * Motion to Supplement the THE UNITED STATES, * Administrative Record; * Post-Award Bid Protest, Defendant, * 28 U.S.C. §§ 1491(a)(1), (b)(1); * RESTATEMENT (SECOND ) OF and * CONTRACTS § 205; * 10 U.S.C. §§ 2305(b)(1), (4)(c); WYLE LABORATORIES, INC., * 48 C.F.R. §§ 15.303(b)(6), 15.305(a)(2), * 15.308. Defendant-Intervenor. * * *************************************** Cyrus Eastman Phillips, IV, Washington, D.C., for Plaintiff. Lauren Springer Moore, United States Department of Justice, Washington, D.C., for Defendant. Leigh Turner Hansson, Reed Smith LLP, Washington, D.C., for Defendant-Intervenor. MEMORANDUM OPINION AND FINAL ORDER BRADEN, Judge This post award bid protest case was filed by Comprehensive Health Services, Inc. ("CHS"), a provider of occupational medicine support services, to challenge the October 28, 2005 award of On May 22, 2006, a pre-publication draft of this Memorandum Opinion and Final Order was provided under seal to the parties. The parties were instructed to propose any redactions. On May 31, 2006, this Memorandum Opinion and Final Order was published with redactions, indicated by the designation "[deleted]," and several clarifying editorial changes made by the court. The nonredacted version also was filed on May 31, 2006 under seal with the Clerk of the United States Court of Federal Claims.
*

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the Occupational Medicine and Occupational Health Contract by the National Aeronautics and Space Administration ("NASA") to Wyle Laboratories, Inc. ("Wyle"), because NASA allegedly violated: procurement statutes and regulations; acted unreasonably or without rational basis; and breached an implied duty of good faith, fair dealing, and honest consideration. CHS requests that the court issue a permanent injunction ordering NASA to appoint a new Source Selection Authority and award CHS legal and equitable relief. For the reasons discussed herein, the court has determined that NASA's award of the Contract did not violate any statute, regulation, provision of the United States Constitution or breach the implied duty of good faith, fair dealing, and honest consideration. Accordingly, judgment is issued in favor of the Government. To facilitate a review of this Memorandum Opinion and Final Order, the court has provided the following outline: I. RELEVANT FACTS A. B. C. Request For Proposal No. NNJ05064093R. The Source Evaluation Board And The Solicitation's Selection Criteria. The Chairman Of The Source Evaluation Board's Presentations To The Source Selection Authority. 1. The September 12, 2005 Presentation. a. b. 2. Wyle Laboratories, Inc. Comprehensive Health Services, Inc.

The Source Selection Authority's Dissatisfaction With The Evaluation Of The Safety And Health Approach Subfactor. The September 14, 2005 Re-Evaluation.

3. D.

The Source Selection Statement. 1. 2. Analysis Of The Technical Approach Subfactor. Analysis Of The Management Approach Subfactor.

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a.

"Weaknesses." i. ii. Wyle Laboratories, Inc.'s Proposal. Comprehensive Health Services, Inc.'s Proposal.

b.

"Strengths" And "Significant Strengths." i. ii. Wyle Laboratories, Inc.'s Proposal. Comprehensive Health Services, Inc.'s Proposal.

c. 3. 4. 5. 6. E.

Overall.

Analysis Of The Small Disadvantaged Business Plan Subfactor. Analysis Of The Safety And Health Plan Subfactor. Analysis Of The Past Performance Factor. Analysis Of The Cost Factor.

The Source Selection Authority Selects Wyle Laboratories, Inc.'s Proposal As The "Best Overall Value To The Government." II. PROCEDURAL BACKGROUND III. DISCUSSION

A. B.

Jurisdiction. Standing. 1. Plaintiff Comprehensive Health Services, Inc. a. b. Comprehensive Health Services, Inc. Is An "Interested Party." Comprehensive Health Services, Inc. Had A "Substantial Chance" Of Being Awarded The Contract.

2.

Intervenor Wyle Laboratories, Inc.

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C.

Relevant Standard For Decision. 1. 2. On Supplementing The Administrative Record. On Judgment On The Administrative Record.

D.

The Court's Resolution Of The Parties' Motions. 1. 2. The Government's Motion To Supplement The Administrative Record. The Parties' Cross-Motions For Judgment On The Administrative Record. a. The Source Selection Authority Did Not Violate 10 U.S.C. § 2305(b)(1) Or Federal Acquisition Regulation 15.305(a)(2). The Source Selection Authority Did Not Violate 10 U.S.C. § 2305(b)(4)(c) Or Federal Acquisition Regulations 15.303(b)(6) And 15.308. The Source Selection Authority Did Not Violate Federal Acquisition Regulation 15.305(a)(3). The Source Evaluation Board's Re-Evaluation Of The Safety And Health Plan Subfactor Had A Rational Basis. The Source Selection Authority's Decision Had A Rational Basis. i. Comprehensive Health Services, Inc.'s Lead Physician's Failure To Have A Texas Medical License By August 24, 2005 Was A "Weakness." Wyle Laboratories, Inc.'s Failure To Provide A Plan For Adequate Staffing Of The Starport Fitness Center Was Not An "Important Concern." Comprehensive Health Services, Inc. And Wyle Laboratories, Inc. Had "A Roughly Equivalent Volume Of Relevant Experience." Wyle Laboratories, Inc. Had More "Large Dollar Value Contracts." Wyle Laboratories, Inc.'s Proposed Program Manager Provided "Greater Value" To The Government.

b.

c.

d.

e.

ii.

iii.

iv. v.

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vi.

Wyle Laboratories, Inc.'s Personnel Was Considered A "Valuable Asset" By The Government. Wyle Laboratories, Inc.'s And Comprehensive Health Services, Inc.'s Cost Estimates Were "So Close As To Not Be Worthy Of Further Consideration." Comprehensive Health Services, Inc.'s And Wyle Laboratories, Inc.'s Proposals Were Evaluated In The Same Manner.

vii.

viii.

f.

The Source Selection Authority Did Not Breach An Implied Duty Of Good Faith, Fair Dealing, And Honest Consideration. IV. CONCLUSION

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I. RELEVANT FACTS1 A. Request For Proposal No. NNJ05064093R.

On March 23, 2005, NASA's Lyndon B. Johnson Space Center ("JSC") issued a Request for Proposal No. NNJ05064093R ("the Solicitation"), a Solicitation for Competitive Proposals, for a single cost plus award term with performance incentive fee contract, known as the Occupational Medicine and Occupational Health ("OMOH") Contract. See AR 1-364. The OMOH Contract is a three-year contract with seven optional one-year extensions, for a total potential period of performance of ten years. See AR 2. The OMOH Contract required the delivery of occupational medicine support services to operate the JSC's Occupational, Emergency, and Preventative Medicine programs and associated clinical wellness programs, including: C C a health care program for NASA employees and contractors stationed in Russia; delivery of Flight Medicine support services, required for operation of the Flight Medicine Clinic that includes aerospace and family practice medicine for NASA astronauts and their immediate family members; delivery of Human Test Support Services, as required for monitoring and supporting test and crew training activities in altered-pressure environments; delivery of Occupational Health Support Services, including industrial hygiene, asbestos control and monitoring, radiation safety, environmental surveillance, and operation of a comprehensive health laboratory; and delivery of White Sands Test Facility Occupational Medicine and Health in Las Cruces, New Mexico, including Occupational, Emergency, and Preventative Medicine programs.

C

C

C

See AR 1-2.

The relevant facts herein are derived from: Plaintiff's November 10, 2005 Complaint; Plaintiff's December 14, 2005 Amended Complaint ("Amend. Compl."); the Administrative Record ("AR" 1-5515), filed on November 17, 2005, and supplemented on November 23, 2005 and by this Memorandum Opinion and Final Order; Plaintiff's November 22, 2005 Motion for Judgment on the Administrative Record ("Pl. Mot. for J."), together with a Brief in support ("Pl. Br."); the Government's November 30, 2005 Cross-Motion for Judgment on the Administrative Record ("Gov't Cross-Mot."); Intervenor's November 30, 2005 Response ("Int. Resp."); the Transcript of the December 1, 2005 Oral Argument; Plaintiff's December 14, 2005 Supplemental Brief ("Pl. Supp. Br."); the Government's December 22, 2005 Supplemental Response Brief ("Gov't Supp. Resp. Br."); the Government's December 22, 2005 Motion to Supplement the Administrative Record ("Gov't Mot. to Supp."); Intervenor's December 22, 2005 Supplemental Response ("Int. Supp. Resp."); Plaintiff's December 29, 2005 Supplemental Reply Brief and Opposition ("Pl. Supp. Reply Br."); and the Government's January 4, 2006 Reply to its December 22, 2005 Motion to Supplement the Administrative Record ("Gov't Reply"). 6

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The Solicitation identified three evaluation factors: a) Mission Suitability; b) Past Performance; and c) Cost Evaluation. See AR 361-64; see also AR 314-32. The Solicitation also identified four subfactors considered under the Mission Suitability Factor, i.e., a) Management Approach; b) Technical Approach; c) Safety and Health Plan; and d) Small Disadvantaged Business Participation Plan. Id. The Solicitation designated a Source Evaluation Board ("SEB") to evaluate proposals, with the assistance of ex-officio supporting personnel, pursuant to the Federal Acquisition Regulations ("FAR") and the NASA FAR Supplement.2 See AR 361. According to the Solicitation, the findings of the SEB Chairman were submitted to the Source Selection Authority ("SSA"), who was responsible for selecting the "proposal(s) [that] represents the best value after evaluation in accordance with the factors and subfactors in the [S]olicitation." AR 302 (emphasis added); see also AR 361 ("The SEB will carry out the evaluation activities and report its findings to the Source Selection Authority (SSA), who is responsible for making the source selection decision."); NASA

The NASA Federal Acquisition Regulations Supplement ("NASA FAR Supplement") "contains both acquisition regulations that require public comment and internal Agency guidance and procedures that do not require public comment." 48 C.F.R. § 1801.105-1(b)(i). NASA must comply with all regulatory and internal guidance and procedures contained in the NASA FAR Supplement. Id. Only those regulations that require public comment are issued in 48 C.F.R. Ch. 18. See 48 C.F.R. § 1801.105-1(b)(ii); see also id. § 1801.105-1(b)(iii) ("The single official NASAmaintained version of the [NASA FAR Supplement] is on the Internet (http://www.hq.nasa.gov/office/procurement/regs/nfstoc.htm)."). 7

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FAR Supp. 1815.370(h).3 In this case, the designated SSA was the Deputy Director of the JSC. See AR 546, 601. The Solicitation also specified a number of services that the contractor was required to provide. For example, nurses assigned to the JSC Occupational Medicine or Flight Medicine Clinic were required to be Registered Nurses ("RN's"), currently licensed to practice in the State of Texas. See AR 24. The Solicitation also required that the contractor "support day-to-day operations of the Starport Fitness Facility" at the JSC Gilruth Center. See AR 39. In addition, all proposed physicians, e.g., Lead Physician, Staff Physician, Deputy Lead Physician, Family Clinic Physician, were required to have a "current license to practice medicine in the State of Texas." AR 263-64. In addition, the Solicitation required offerors to submit a Phase-In Plan for a transition period of up to thirty days, followed by the three-year Basic Period of Performance and seven one-year options. See AR 312, 315. In addition, the Solicitation required that the Technical Approach section of an offeror's proposal contain a "Basis of Estimate" to provide the supporting rationale for all proposed resources, e.g., full-time employees, skill mix, a discussion of any assumption regarding the

3

The NASA FAR Supplement requires that:

(1) The SEB Chairperson shall brief the SSA on the results of the deliberations to permit an informed and objective selection of the best source(s) for the particular acquisition. (2) The presentation shall focus on the significant strengths, deficiencies, and significant weaknesses found in the proposals, the probable cost of each proposal, and any significant issues and problems identified by the SEB. This presentation must explain any applicable special standards of responsibility; evaluation factors and subfactors; the significant strengths and significant weaknesses of the offerors; the Government proposed cost/price; the probable cost; the proposed fee arrangements; and the final adjectival ratings and scores to the subfactor level. (3) Attendance at the presentation is restricted to people involved in the selection process or who have a valid need to know. The designated individuals attending the SEB presentation(s) shall: (i) Ensure that the solicitation and evaluation processes complied with all applicable agency policies and that the presentation accurately conveys the SEB's activities and findings; (ii) Not change the established evaluation factors, subfactors, weights, or scoring systems; or the substance of the SEB's findings. They may, however, advise the SEB to rectify procedural omissions, irregularities or inconsistencies, substantiate its findings, or revise the presentation[.] NASA FAR Supp. 1815.370(h). 8

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proposed resources, and sufficient detail to demonstrate that the proposed resources are realistic.4 See AR 320-21. B. The Source Evaluation Board And The Solicitation's Selection Criteria.

The SEB was comprised of six voting members, all of whom were JSC employees. See AR 546, 601, 4381, 5244. The governing NASA FAR Supplement also required: The SEB [to assist] the SSA by providing expert analyses of the offerors' proposals in relation to the evaluation factors and subfactors contained in the solicitation. The SEB will prepare and present its findings to the SSA, avoiding trade-off judgments among either the individual offerors or among the evaluation factors. The SEB will not make recommendations for selection to the SSA. NASA FAR Supp. 1815.370(b). On April 25, 2005, three proposals were submitted in response to the Solicitation by: CHS; Wyle; and [deleted]. See AR 605, 4390. The SEB conducted a preliminary review and found that all three proposals were acceptable. See AR 4390, 4395-96, 4401; see also 48 C.F.R. § 1815.305-70 (setting forth the circumstances where a proposal may be deemed unacceptable). The SEB, however, decided that only the proposals submitted by CHS and Wyle were in the competitive range. See AR 606, 4396, 4769-71, 4803-05, 4832-33, 5063-64; see also 48 C.F.R. § 1815.306. Accordingly, CHS and Wyle were invited "to participate in written and oral discussions, and both were given the opportunity to correct, clarify, substantiate, or confirm the contents of their proposals and to submit a final proposal revision [("FPR")] and a signed model contract[.]" AR 606. The deadline for final proposal revisions and clarifications was August 24, 2005. See AR 4834, 4873. The SEB again evaluated these proposals based on the three evaluation factors set forth in the March 23, 2005 Solicitation, i.e., Mission Suitability;5 Past Performance;6 and Cost.7 See AR

The Solicitation included a "Labor Independent Government Estimate," i.e., NASA's estimate of the labor resources (full-time equivalent positions) required to perform the proposed OMOH Contract. See AR 323-24. The Labor Independent Government Estimate stated that 86.5 full-time equivalent positions are required during each year of the ten-year contract term. See AR 324. This estimate includes all labor required to perform the entire Statement of Work, with the exception of traditional general and administrative type personnel. Id. The Solicitation specified that the Mission Suitability Factor would be numerically scored. See AR 361. The maximum number of points for this factor was 1,000. See AR 362. This maximum number of points was allocated among the following subfactors: Management Approach (300); Technical Approach (450); Safety and Health Plan (150); and Small Disadvantaged Business 9
5

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361-64. The Solicitation emphasized that the Mission Suitability and Past Performance Factors combined were considered "significantly more important" than Cost. AR 364 (emphasis added). Mission Suitability and Past Performance were to be weighed as being approximately equal. Id. C. The Chairman Of The Source Evaluation Board's Presentations To The Source Selection Authority. 1. The September 12, 2005 Presentation.

On September 12, 2005, the SEB Chairman reported the results of the SEB's evaluation to the SSA. See AR 605; see also AR 5047-240.

Participation (100). Id. Point determinations were to be made when the SEB determined the proposals had: "Significant Strengths;" "Strengths;" "Significant Weaknesses;" "Weaknesses;" and "Deficiencies." See AR 5247. The Past Performance Factor, however, was to be rated adjectively, "based on information provided by the offeror in their proposals, as well as any other information obtained independently by the SEB." AR 363. The Solicitation required that each offeror first identify up to five contracts within the past three years "that demonstrate the ability of the offeror to perform the OMOHC work." AR 326. The Past Performance Factor allowed the SEB to compare relevant earlier work of offerors to determine how they can be expected to perform the proposed work. See AR 363. Each offeror also was to provide the Contracting Officers with "Past Performance Questionnaires" of former customers. See AR 340. The "Past Performance Questionnaire" asked former customers to rate each offeror's compliance with "Technical Performance," "Contract Management and Cost Performance," and "General" categories. See AR 343-50. Three questions in the Technical Performance category asked former customers to rate the offeror's compliance with: "technical requirements and standards in providing occupational medicine support and services;" "technical requirements and standards in providing flight medicine support and services;" and "technical requirements in providing occupational health support and services." AR 343. The "Past Performance Questionnaires" also asked former customers to rate each offeror as "Exceptional," "Satisfactory," "Unsatisfactory," or "Not Applicable" in each of the following five technical areas: "Occupational Medicine;" "Flight Medicine;" "Human Test Support and Training;" "Environmental Health;" and "Occupational Health." AR 344. The Cost Factor was to be based on a cost-realism analysis of the estimate provided in the Cost/Price Proposal volume of the proposal. See AR 363-64. 10
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a.

Wyle Laboratories, Inc.

The SEB Chairman rated Wyle's Past Performance with one "Significant Strength," two "Strengths," and four "Weaknesses." See AR 5183-92.8 This corresponded to an adjectival rating of "Excellent." See AR 5033, 5122. With regard to Mission Suitability, Wyle received six "Significant Strengths," four "Strengths," and three "Weaknesses" in the Management Approach Subfactor;9 three "Significant Strengths," and five "Strengths" in the Technical Approach Subfactor; one "Strength" in the Safety and Health Plan Subfactor;10 and one "Weakness" in the Small Disadvantaged Business Participation Subfactor. See AR 5132-37; see also AR 5138-92. The numerical and adjectival ratings for the four subfactors for the Mission Suitability evaluation factor were as follows: Subfactor Management Approach Technical Approach Safety and Health Plan Small Disadvantaged Business Participation Point Score [deleted] [deleted] [deleted] [deleted] Adjectival Rating Excellent Excellent Good Good

The SEB identified four "Weaknesses" with Wyle's Past Performance. See AR 5040-41, 5137, 5189-92. First, Wyle and Kelsey-Seybold Clinic ("Kelsey-Seybold"), the incumbent contractor, had a contentious relationship. See AR 5137, 5191. Second, Wyle failed to remedy a low Performance Evaluation Profile issued in connection with the current contract, indicating a lack of responsiveness. See AR 5137, 5190. Third, Wyle planned to use a major subcontractor that failed to provide adequate physician staffing in connection with the current contract, imposing additional costs on the Government. See AR 5137, 5189. Fourth, Kelsey-Seybold encountered difficulties in management of a subcontractor for ambulance services. See AR 5137, 5192. The SEB also identified three "Weaknesses" with Wyle's Management Approach. See AR 5037, 5137, 5151-54. First, Wyle failed to meet the statement of work requirement for Registered Nurses in the Occupational Medical Clinic. See AR 5151-52. Second, Wyle failed to meet the staffing requirements for the Starport Fitness Center. See AR 5154. Third, Wyle submitted a Small Disadvantaged Business Plan, containing erroneous data. See AR 5153-54. As a consequence, the SEB questioned Wyle's ability to meet the required Small Disadvantaged Business Goals. Id. The SEB, however, identified Wyle's Safety, Health, and Environmental Compliance Plan as a "Strength." See AR 5136 ("Well developed Safety, Health, and Environmental Compliance Plan demonstrates a clear understanding of the requirements for successful operations at JSC."). 11
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See AR 5121. The overall rating for the Mission Suitability Factor was "Very Good" with a score of [deleted]/1,000. Id. With regard to the Cost Factor, Wyle's proposed cost was $[deleted] and the probable cost, determined by the cost-realism analysis, was $[deleted]. See AR 5117. b. Comprehensive Health Services, Inc.

The SEB rated CHS's Past Performance Factor as having one "Significant Strength;" three "Strengths;" and one "Weakness." See AR 5046, 5111-13. This corresponded to an adjectival rating of "Excellent." See AR 5033, 5121. CHS's Mission Suitability Factor was rated as having: four "Significant Strengths;" five "Strengths;" and one "Weakness" in the Management Approach Subfactor;11 one "Significant Strength" and seven "Strengths" in the Technical Approach Subfactor; one "Significant Strength" in the Safety and Health Plan Subfactor;12 and no strengths or weaknesses on the Small Disadvantaged Business Participation Subfactor. See AR 5132-37; see also AR 5193-239. The SEB assigned the following numerical and adjectival ratings for these subfactors: Subfactor Management Approach Technical Approach Safety and Health Plan Small Disadvantaged Business Participation Point Score [deleted] [deleted] [deleted] [deleted] Adjectival Rating Very Good Excellent Excellent Good

CHS's Management Approach Subfactor was assigned a "Weakness," because CHS proposed to use a temporary doctor, if the proposed lead physician had not received a Texas medical license at the time contract performance was to commence. See AR 5137. The SEB reported that "the licensing of the [sic] Dr. Janczewski is being aggressively pursued . . . and investigation into his record in other states shows no reason that a Texas medical license should not be granted." AR 5202. The SEB, however, indicated that this presents some level of risk that "could result in less than adequate contract performance." AR 5137. CHS's proposed lead physician received a Texas medical license on October 3, 2005. See AR 5401. CHS forwarded this information to the NASA Contracting Officer on October 4, 2005. See AR 5398-400. The SEB assigned CHS's Safety, Health, and Environmental Compliance Plan a "Significant Strength." See AR 5136 ("The offeror provides an excellent Safety, Health[,] and Environmental Compliance Plan that is fully developed and ready for immediate implementation."); see also AR 5231. 12
12

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See AR 5121. The overall rating for the Mission Suitability Factor was "Very Good" with a score of [deleted]/1,000. Id. With regard to the Cost Factor, CHS's proposed cost was $[deleted] and the probable cost, determined by the cost-realism analysis, was $[deleted]. See AR 5118. 2. The Source Selection Authority's Dissatisfaction With The Evaluation Of The Safety And Health Approach Subfactor.

After the SEB Chairman's September 12, 2005 presentation, the Source Selection Statement reflected a concern about why there was a wide variance in the SEB's rating of Wyle's and CHS's Safety and Health Approaches: Wyle was assessed [by the SEB] a Good in the subfactor of Safety and Health Approach, and CHS was assessed an Excellent. . . . In reading the detailed findings, it was not apparent . . . why there was such a discrepancy in the offerors' scores. For example, the significant strength for CHS'[s] Safety Plan stated that the plan exhibited [a] "solid, comprehensive understanding of the requirements," whereas the strength for Wyle's proposal indicated that it "provided a . . . comprehensive . . . plan that meets the requirements[.]" Whereas CHS'[s] Safety Plan included a "strong continuous improvement emphasis" and addressed "specific contract related concerns along with the required mitigation and actions," Wyle's Safety Plan demonstrated "a highly developed insight into . . . training needs," along with demonstrating "a high state of readiness to implement a safety and health program at high quality levels." In further questioning the [Source Evaluation] Board members regarding the distinction between the two Safety Plans, they were largely unable to articulate a measurable separation that corresponded in degree to the substantial adjective and point differences the Board had assigned in quality between them, other than to indicate that they considered CHS'[s] emphasis on continuous improvement to be important. However, [the SEB] also discussed that Wyle proposed to maintain its superior rating with respect to its VPP status,13 which . . . indicates that there was at
13

The Solicitation provided that the awardee "shall fully support the JSC Safety and Health (S&H) OSHA VPP efforts and continue operation of the JSC's certified program, . . . [and] shall provide health program support for any onsite contractor attempt at OSHA VPP recognition." AR 25. In addition, the Solicitation provides that the awardee "is highly encouraged to pursue VPP `Star' certification." Id. The U.S. Department of Labor, Occupational Safety & Health Administration ("OSHA")'s Voluntary Protection Program ("VPP") "promote[s] effective worksite-based safety and health." OSHA Voluntary Protection Program, U.S. DEP'T OF LABOR, OCCUPATIONAL SAFETY & HEALTH ADMIN ., available at http://www.osha.gov (last visited May 31, 2006); see also 65 FED . REG . 45,650 13

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least an implied commensurate commitment on the part of Wyle to take the steps necessary (including any necessary improvements), to successfully do so. AR 617-18 (certain alterations in original & footnote inserted). As a result, the Source Selection Statement further explained that the SSA directed the SEB to re-evaluate the Safety and Health Approach Subfactor, with the assistance of a new independent safety expert: Taking all of this discussion into account, I was therefore of the opinion that the Board either had not adequately evaluated the Safety Plans, or had not fully articulated an otherwise accurate evaluation. Accordingly, I requested the Board to take a fresh look at the Safety Plans (including obtaining the views of an independent safety expert who would be appointed an ex officio member of the SEB), and to report their results to me. AR 618 (italics added). The SSA directed that a second ex-officio safety and health expert be appointed to assist the SEB with the re-evaluation. See AR 5498-99. In response, the Safety and Mission Assurance Directorate appointed the Assistant for Operation ("the ex-officio member"), to assist the SEB. See AR 5503. 3. The September 14, 2005 Re-Evaluation.

As directed, the SEB re-evaluated the Safety and Health Plan Subfactor with the input from the ex-officio member. See AR 618. On September 14, 2005, the SEB Chairman again met with the SSA and presented the results of the re-evaluation of the Safety and Health Approach Subfactor, wherein Wyle's Safety and Health Plan rating was changed, from one "Strength," to one "Significant Strength" and two "Strengths." Compare AR 5136, with AR 5025-27.14 The SEB also changed CHS's rating, from one "Significant Strength," to one "Significant Strength" and three "Strengths." Compare AR 5136, with AR 5029-31.15 In addition, the SEB revised the numerical ratings of the

(July 24, 2000) ("Approval into VPP is OSHA's official recognition of the outstanding efforts of employers and employees who have achieved exemplary occupational safety and health."). Id. OSHA has three VPP distinctions: "Star;" "Merit;" and "Star Demonstration." Id. As a result of the re-evaluation, the SEB made two additional findings: classifying Wyle's training plan as a "Significant Strength;" and discussing Wyle's understanding of hazard analysis and identification as a "Strength." See AR 5026-27. The SEB also restated the prior finding that Wyle's Safety, Health, and Environmental Compliance Plan was a "Strength." See AR 5027. After the re-evaluation, the SEB identified CHS's Plan to obtain VPP Star status within one year after commencing performance under the OMOH Contract as a "Significant Strength." See AR 5030. The SEB, however, changed the prior finding that CHS's Safety, Health, and Environmental Compliance Plan was a "Significant Strength" to a finding that the Plan was only a "Strength." Compare AR 5100, with AR 5031. The SEB also noted two additional CHS 14
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Safety and Health Plan Subfactor: Wyle was increased from [deleted] to [deleted] and CHS was reduced from [deleted] to [deleted], so that both were rated "Very Good." See AR 5033; see also AR 5121. The overall rating for Wyle's Mission Suitability Factor increased from [deleted] to [deleted]. Id. The overall rating for CHS's Mission Suitability Factor decreased from [deleted] to [deleted]. Id. D. The Source Selection Statement.

The applicable regulations require that the SSA sign a Source Selection Statement before the award of the OMOH Contract that "clearly and succinctly justifies the selection." NASA FAR Supp. 1815.308(2). Therefore, on October 25, 2005, the SSA issued a Source Selection Statement based on a "qualitative assessment of the benefits to the Government arising from the strengths as well as the risk to successful contract performance represented by the remaining weaknesses." AR 608; see also AR 605-20. The SSA "focuse[d] on findings . . . found to be discriminators during . . . deliberations in making [the] source selection decision." Id. The Source Selection Statement also included the SSA's analysis of the four Subfactors for the Mission Suitability Factor, i.e., Management Approach, Technical Approach, Safety and Health Plan, Small Disadvantaged Business Participation Plan, as well as the Past Performance and Cost Factors. Id.; see also AR 31432, 361-64. 1. Analysis Of The Technical Approach Subfactor.

The SSA first analyzed the Technical Approach Subfactor of the Mission Suitability Factor and concluded that "from a quantitative standpoint, Wyle and CHS were rated as Excellent, because both companies were relatively close in numerical scores." Id. The SSA then evaluated each "Strength" and "Significant Strength" to determine whether there was a competing counterpart. See AR 609. Those that did not have a competing counterpart were considered discriminators. Id. The SSA decided that Wyle had several "Significant Strengths" that were discriminators: "numerous proposed technical enhancements;" "a multi-faceted data integration plan, which will allow significantly improved access to and interoperability of the data;" and an "excellent risk matrix that demonstrated a clear understanding of the work and associated risk issues[.]" Id. As a discriminating "Strength," the SSA was impressed with Wyle's understanding of treating workplace injuries and illnesses and establishing workgroups with other onsite industrial hygiene operations. See AR 609-10. On the other hand, CHS had a discriminating "Significant Strength," i.e., "a highly effective understanding of the information technology (IT) needs of the contract," because CHS planned to use "occupational health nurses to perform certain physicals[,]" "a hyperbaric medicine physician who is a leading and recognized expert in the field," and "proposed to hire expert consultants for the environmental health laboratory and for safety and health training." AR 610.

"Strengths:" management's commitment to the overall safety and health culture; and a tracking and reporting capability for hazards and lessons learned. Id. 15

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The SSA concluded, however, that "there was a much greater qualitative disparity between the two proposals in the Technical Approach [S]ubfactor than the [SEB's] adjective and point ratings convey[.]" AR 611. Accordingly, the SSA "determined that the proposal of Wyle enjoyed a substantial advantage to the Government over that of CHS in [the Technical Approach] [S]ubfactor." Id. 2. Analysis Of The Management Approach Subfactor.

The SSA next analyzed the Management Approach Subfactor of the Mission Suitability Factor. Id. a. "Weaknesses."

The SSA began the analysis with a consideration of the "Weaknesses" of both proposals. Id. i. Wyle Laboratories, Inc.'s Proposal.

The first "Weakness" of Wyle's proposal was identified as the proposal to use licensed vocational nurses ("LVN's"), instead of RN's. Id. The SSA questioned the SEB about this "Weakness," because Wyle represented in the final proposal revision that it would "meet the contract requirement and staff the clinic with registered nurses." Id. The SSA also noted that the basis of Wyle's estimate included LVN's, but determined the proposal to use LVN's was "inadvertent." Id. Accordingly, the SSA "did not attach much weight to this [W]eakness." Id. The second identified "Weakness" in Wyle's proposal was an "inconsistency in the dollar values of subcontracts listed in a particular table contained in the proposed Subcontracting Plan." Id. Again, the SSA considered this only an "editorial error." Id. The third identified "Weakness" was "a failure to provide adequate staffing for the Starport Fitness Center." AR 612. And, again, the SSA did not consider this "Weakness" "to be of great importance," since it could be corrected if Wyle was awarded the OMOH Contract. Id. ii. Comprehensive Health Services, Inc.'s Proposal.

In contrast, the SSA was concerned about CHS's proposal "to utilize a licensed physician temporarily for fulfilling Texas' medical licensing requirements for the lead physician pending the proposed permanent lead physician obtaining a Texas license." Id. The SEB considered this plan "less than optimal," but found this "Weakness" "to be of greater weight than the Board concluded." Id. The SSA concluded that "[t]o have the role of lead physician filled by a temporary placeholder could adversely impact contract performance at the crucial time of contract phase-in and transition, when the effort is already vulnerable to disruption and a diminution in quality" and that "this [W]eakness cannot be corrected until and unless Texas issues the necessary medical licenses to the proposed individuals." Id.

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b.

"Strengths" And "Significant Strengths."

Next, the SSA compared the "Strengths" and "Significant Strengths" of both proposals. Id. i. Wyle Laboratories, Inc.'s Proposal.

Wyle proposed a manager with "over 20 years of directly related experience as a civil servant, with the current OMOH incumbent, and as program manager of the former JSC Life Sciences contract." Id. The proposed program manager also "ha[d] multiple professional associations and contacts which will be of great value to the OMOH contract" and "all references were very positive," because CHS's manager "is certified in occupational health, industrial hygiene, and safety, and has extensive experience in occupational and emergency medicine" and with "this combination of knowledge and demonstrated skills will ensure successful contract performance." AR 612-13. Although both proposed managers had the necessary credentials and skills, Wyle's proposed manager was determined to offer "greater value to the government because of his directly relevant management experience as a member of the JSC community." AR 613. In addition, Wyle "proposed a cadre of Key Personnel," of which all but one "are incumbents who have multiple years of proven high quality experience and demonstrated performance." Id. On this basis, the SSA concluded that "this [S]ignificant [S]trength is of great value to the Government[,] . . . [and CHS] did not have a comparable strength in this area." Id. Wyle also proposed a "workable plan for both short and long-term backup for physicians in the Occupational and Flight Medicine Clinics[,] . . . which had no counterpart in the CHS proposal." Id. The SSA noted that this "Significant Strength" is "of notable value to the Government in that . . . Wyle dramatically increases its ability to meet and exceed the Government's requirements for sustained quality medical services." Id. Moreover, the proposed structure and implementation of Wyle's communication plan contemplated "using automated tools [that] ensures timely, efficient information flow through utilization of a web-based tool for distributing a wide array on contract reportable and wellness data." Id. The SSA considered this valuable, because "it is [a] proactive approach [that] will improve communications, thus reducing the potential for disruptions, improper or inadvisable actions, and delays due to misunderstanding or lack of information." AR 613-14. The SSA concluded that CHS had no comparable strength in this respect. Id. In addition, Wyle received a "Significant Strength" for organizational structure, because it addressed "functional synergisms designed to enhance communication, as well as cross training and cross utilization of personnel are clear . . . and the required management levels of responsibility for different actions." AR 614. The SSA concluded that "this is highly beneficial to the Government, because the clear depiction of these functions indicates that the Wyle team has a strong understanding of the work required." Id. The Wyle organizational structure also "proposed a team of individuals to promote and monitor excellent performance," and would "continuously manage the contract data stream from the operations within the contract." Id. The SSA concluded that this also was of value to the Government, as it afforded a "single point of contact for contract and program information." Id. 17

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The Wyle proposal also received a "Significant Strength" for the Total Compensation Plan, because the attractive benefits proposed will "ensure that highly skilled and qualified personnel will be recruited, hired and retained." AR 614-15. The CHS Total Compensation Plan was rated as a "Strength" for "generous vacation time and comprehensive life insurance, as well as a [S]trength for immediate fringe benefit coverage." AR 615. The SSA concluded, however, that the Wyle proposal was excellent from the beginning, whereas the CHS plan had been "driven to a higher level through discussions." Id. ii. Comprehensive Health Services, Inc.'s Proposal.

CHS proposed to use "subcontractors that specialize in their proposed areas of responsibility." Id. In contrast, the Wyle proposal also contained a "Strength" by using "the corporate competencies of the individual team members which are well suited to the proposed areas of responsibility." Id. The SSA, however, determined that Wyle's "Strength" did not "rise to the same level of significance . . . because one of the team members did not have relevant past performance." Id. Therefore, the SSA "concluded that the CHS proposal offered a greater value to the Government in this area." Id. CHS also received a "Significant Strength" for the proposed Phase-In Plan, as did the Wyle proposal. Id. The SSA concluded that although the SEB found the CHS plan to be superior, upon a closer look at the detailed findings, there was no substantial difference between the two. See AR 615-16. In addition, taking into account the uncertainty of the lead physician's Texas medical license, the SSA concluded that the two Phase-In Plans were equal. Id. In addition, the CHS proposal received a "Significant Strength" for a comprehensive Conflict of Interest Mitigation Plan, however, the Wyle proposal also received a "Strength" in this area. See AR 616. Although the SSA found little difference between the substance of the two proposals, the SSA concluded that CHS's plan was more comprehensive and detailed. Id. Another "Strength" of the CHS proposal was the plan to obtain Occupational Safety and Health Administration's VPP "Star" Site recognition within the first year of performance. Id. The SSA determined that this would be of value to the Government and that Wyle had no comparable strength, except that "Wyle and its major team member currently enjoy VPP status onsite." Id. c. Overall.

In conclusion, the SSA by "reviewing, comparing and contrasting all of the [S]ignificant [S]trengths, [S]trengths, and remaining [W]eaknesses between the two competitors," determined that "the relative adjective ratings of Excellent for Wyle and Very Good for CHS represented real and measurable difference between them." Id. Accordingly, the SSA concluded that in the Management Approach Subfactor "Wyle had a clear advantage over CHS." AR 617.

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3.

Analysis Of The Small Disadvantaged Business Plan Subfactor.

The third SSA evaluation was of the Small and Disadvantaged Business Plan Subfactor of the Mission Suitability Factor. Id. Here, the SSA found that the SEB did not identify any strengths or weaknesses for CHS. Id. In contrast, the SEB determined that Wyle's proposal had one "Weakness" of "inconsistent data [that] prevented the Board from making a meaningful assessment of the data." Id. After consulting with the SEB, however, the SSA decided that the inconsistent data was an "editorial [W]eakness" and not a "substantive [W]eakness." Id. Accordingly, the SSA concluded that the two proposals essentially were equal with respect to the Small Disadvantaged Business Plan Subfactor. Id. 4. Analysis Of The Safety And Health Plan Subfactor.

On September 12, 2005, the SSA directed the SEB to re-evaluate the Safety and Health Plan Subfactor of the Mission Suitability Factor with an independent safety expert. See AR 618. After the SEB did so, the SEB Chairman reported the findings to the SSA on September 14, 2005. Id. The SSA observed in the Source Selection Statement that he was: satisfied that [the results of the re-evaluation] reflected a more accurate representation of the relatively close value of the Safety Plans than the original findings had conveyed. In further discussing the matter with the Board members [on September 14, 2005], they indicated to me that they were individually and collectively more confident that the re[-]evaluation was a more sound analysis than they had first conducted, and therefore of greater fidelity to the contents of the plans. AR 619. In the re-evaluation, Wyle had "one [S]ignificant [S]trength and two [S]trengths[,] and the subfactor was rated as Very Good overall[:]" the "Significant Strength" was an "excellent safety and health training program;" and the "Strengths" were that the "Safety Plan demonstrated a clear understanding of the requirements for successful, safe operations at the JSC," and "demonstrated a very good understanding of hazard analysis and identification." AR 618. The CHS proposal, however, "was scored somewhat higher, but was also rated Very Good overall, with one [S]ignificant [S]trength and three [S]trengths," including a plan for obtaining VPP Star status within one year of performance. Id. In sum, CHS's Safety and Health Plan Subfactor strengths revealed "an excellent Safety Plan," a commitment to "JSC's safety and health culture," and "a proposed tracking and reporting capability for hazards and lessons learned." Id. Therefore, the SSA concluded that although the two plans were comparable, CHS's plan "would improve the JSC safety culture to a somewhat greater extent than Wyle's plan." AR 619.

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5.

Analysis Of The Past Performance Factor.

As to the Past Performance Factor, the SSA also observed that both companies were rated as "Excellent," however, Wyle had "greater experience with large dollar value contracts." Id. In addition, Wyle proposed to use the incumbent contractor, Kelsey-Seybold, as a subcontractor for "a multitude of OMOH activities." Id. Kelsey-Seybold "has held . . . [a] directly relevant position with consistently excellent results, for many years at JSC." Id. Accordingly, the SSA concluded that Wyle's "past performance offered a greater value to the Government." Id. 6. Analysis Of The Cost Factor.

The SSA also compared the Cost Factor of the two proposals, but again decided there was a negligible difference between the estimated costs and the Cost Factor was not "worthy of further consideration as a discriminator between the two proposals." Id. E. The Source Selection Authority Selects Wyle Laboratories, Inc.'s Proposal As The "Best Overall Value To The Government."

Finally, the Source Selection Statement concluded that although the "competitors might appear to be at a dead heat, . . . [after] conducting [an] in-depth review of all the findings for both offerors, [NASA] is confident that there are true discriminators . . . which give Wyle the clear advantage." AR 620. Therefore, the SSA selected Wyle's proposal as the "best overall value to the Government." Id. On October 28, 2005, NASA awarded Contract No. NNJ05064093R to Wyle, at an estimated cost of $[deleted]. See AR 605-620, 5402-03. II. PROCEDURAL BACKGROUND On November 10, 2005, CHS filed a Complaint in the United States Court of Federal Claims, pursuant to 28 U.S.C. §§ 1491(a)(1), (b)(1). On November 10 and 14, 2005, the court convened telephone conferences to discuss a proposed briefing and hearing schedule. Pursuant to the parties' request, the court entered a Protective Order on November 15, 2005. On November 15, 2005, the court entered a Scheduling Order. On November 17, 2005, Wyle filed a Motion to Intervene, pursuant to RCFC 24(a). On November 17, 2005, the court granted Wyle's Motion to Intervene. On November 17, 2005, the Government filed the Administrative Record. On November 22, 2005, CHS filed a Motion for Judgment on the Administrative Record. On November 23, 2005, the Government supplemented the Administrative Record by leave of the court. On November 30, 2005, the Government filed a Cross-Motion for Judgment on the Administrative Record. On November 30, 2005, Wyle filed a Response to CHS's Motion for Judgment on the Administrative Record.

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On December 1, 2005, the court held an Oral Argument. On December 14, 2005, CHS filed an Amended Complaint and a Supplemental Brief. On December 22, 2005, the Government filed a Supplemental Response Brief and a Cross-Motion to Supplement the Administrative Record. On December 22, 2005, Wyle filed a Supplemental Response Brief. On December 29, 2005, CHS filed a Supplemental Reply Brief and an Opposition to the Government's December 22, 2005 Motion to Supplement the Administrative Record. On January 4, 2006, the Government filed a Reply to CHS's December 29, 2005 Opposition. III. DISCUSSION A. Jurisdiction.

The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 ("ADRA"), Pub. L. No. 104-320, §§ 12(a), (b), 110 Stat. 3870 (Jan. 3, 1996), authorizes the United States Court of Federal Claims to "render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or 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." 28 U.S.C. § 1491(b)(1). The United States Court of Federal Claims also has "jurisdiction to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States[.]" 28 U.S.C. § 1491(a)(1). Since the Tucker Act only serves as a "jurisdictional statute[,] it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify and plead an independent contractual relationship for the court to have jurisdiction. See Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act."); see also Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) ("To show jurisdiction . . . [a plaintiff] must show that either an express or impliedin-fact contract underlies its claim."). The Amended Complaint alleges that NASA's award of the OMOH Contract to Wyle violates applicable procurement statutes and regulations, lacks a rational basis, and breaches an implied duty of good faith, fair dealing, and honest consideration. See Amend. Compl. ¶¶ 1-4, 4243, 45, 47-48, 50-51, 53-55, 57, 59, 61-62, 64-65, 67-68, 70; see also Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1352 (Fed. Cir. 2004) ("Under the APA, `[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.'" (quoting 5 U.S.C. § 702)); Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998) (quoting United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed. Cir.1983) (en banc)) ("The jurisdictional basis for such suits is the alleged breach of `an implied contract to have the involved bids fairly and

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honestly considered.'"). Therefore, the court has determined that it has jurisdiction to adjudicate the claims alleged in the Amended Complaint. B. Standing. 1. Plaintiff Comprehensive Health Services, Inc. a. Comprehensive Health Services, Inc. Is An "Interested Party."

As a threshold matter, a protester to an award of a contract must establish that it is an "interested party." 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal Circuit has construed the term "interested party" as synonymous with "interested party," as defined by the Competition in Contracting Act, 31 U.S.C. § 3551.16 See Rex Serv. Corp. v. United States, No. 05-5142, ___ F.3d ___, 2006 WL 1214967, at *1, 2006 U.S. App. LEXIS 11349, at *4 (Fed. Cir. May 8, 2006); see also Banknote Corp., 365 F.3d at 1352 (holding that the United States Court of Federal Claims' jurisdiction under the Tucker Act, as amended, is "limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract"). A two-part test is applied to determine whether a protester is an "interested party:" the protestor must show that it was an actual or prospective bidder; and the protester must have a direct economic interest in the procurement. See Rex Serv. Corp., 2006 WL 1214967, at *1-*2, 2006 U.S. App. LEXIS 11349, at *5 ("[T]o come within the Court of Federal Claims' section 1491(b)(1) bid protest jurisdiction, [the protester] is required to establish that it (1) is an actual or prospective bidder, and (2) possesses the requisite direct economic interest.") (citations omitted); see also Am. Fed'n Gov't Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) ("We . . . hold that standing under [28 U.S.C.] § 1491(b)(1) is limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract."). On April 25, 2005, CHS submitted a Response to Request for Proposal No. NNJ05064093R. See AR 605, 621-2160. On July 13, 2005, the SEB determined that only two of the proposals were in a competitive range: CHS and Wyle. See AR 4769, 4803; see also AR 606, 4396. On September 12, 2005, the SEB Chairman presented findings to the SSA, in which CHS's proposal received a higher final score than Wyle's proposal:

The term "`interested party,' with respect to a contract or a solicitation or other request for offers described in paragraph (1), means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." 31 U.S.C. § 3551(2)(A). 22

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Mission Suitability CHS Wyle Very Good Very Good

Final Score [deleted] [deleted]

Past Performance Excellent Excellent

Probable Cost $[deleted] $[deleted]

Confidence Level HIGH HIGH

See AR 5122. The following chart summarizes the results that the SEB presented to the SSA on September 12, 2005: Wyle Ranking Management Approach Technical Approach Safety and Health Plan Small Disadvantaged Business TOTAL Past Performance See AR 5121. Thereafter, the SSA directed the SEB to re-evaluate the Safety and Health Plan Subfactor of both proposals. See AR 618. In response, the SEB presented revised findings to the SSA on September 14, 2005, wherein Wyle's rating increased by 20.5 points and CHS's rating decreased by 15 points: Excellent Excellent Good Good Score [deleted] [deleted] [deleted] [deleted] % [deleted] [deleted] [deleted] [deleted] Ranking Very Good Excellent Excellent Good CHS Score [deleted] [deleted] [deleted] [deleted] % [deleted] [deleted] [deleted] [deleted]

Very Good Excellent

[deleted]

[deleted]

Very Good Excellent

[deleted]

[deleted]

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Mission Suitability Wyle CHS Very Good Very Good

Final Score [deleted] [deleted]

Past Performance Excellent Excellent

Probable Cost $[deleted] $[deleted]

Confidence Level HIGH HIGH

See AR 5034. As a consequence, Wyle's final score was now higher than CHS's final score. Id. The following chart summarizes the results that the SEB presented to the SSA on September 14, 2005: Wyle Ranking Management Approach Technical Approach Safety and Health Plan Small Disadvantaged Business TOTAL Past Performance See AR 5033. On October 28, 2005, the SSA awarded the OMOH Contract to Wyle. See AR 605-20, 540203. As the first runner-up, CHS has a "direct economic interest" in the award of the OMOH Contract and, therefore, is an "interested party." See AR 619-20, 5033-34; see also Am. Fed'n Gov't Employees, 258 F.3d at 1302 ("We hold that standing under [28 U.S.C.] § 1491(b)(1) is limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract."). Excellent Excellent Very Good Good Score [deleted] [deleted] [deleted] [deleted] % [deleted] [deleted] [deleted] [deleted] Ranking Very Good Excellent Very Good Good CHS Score [deleted] [deleted] [deleted] [deleted] % [deleted] [deleted] [deleted] [deleted]

Very Good Excellent

[deleted]

[deleted]

Very Good Excellent

[deleted]

[deleted]

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b.

Comprehensive Health Services, Inc. Had A "Substantial Chance" Of Being Awarded The Contract.

To prevail, a disappointed bidder must provide evidence of "a significant error in the procurement process, but also that the error prejudiced it." See Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004) (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996). The United States Court of Appeals for the Federal Circuit has held that "because the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits." Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) ("In order to establish standing, ITAC must show that it is an `actual or prospective bidder[ ] or offeror[ ] whose direct economic interest would be affected by the award of the contract or by failure to award the contract,' i.e., that ITAC was an interested party, prejudiced by the award to RSIS." (alterations in original & emphasis added)). To establish prejudice, a disappointed bidder also must show that there was a "substantial chance" it would have received the contract award but for the alleged error. See Galen Med. Assocs., 369 F.3d at 1331; see also Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001) ("To establish prejudice in an action involving an alleged statutory or regulatory violation, a protester must show that absent the error, `there was a substantial chance it would have received the contract award.'" (emphasis added)) (citation omitted); Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1368 (Fed. Cir. 1999) ("A protester demonstrates prejudice by showing `that there was a substantial chance it would have received the contract award' if the government had not violated the law." (emphasis added)); Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996) ("Thus, for [plaintiff] to prevail it must establish not only some significant error in the procurement process, but also that there was a substantial chance it would have received the contract award but for that error." (emphasis added)). The "substantial chance" test reflects a "reasonable balance between the importance of (1) averting unwarranted interruptions of and interferences with the procurement process and (2) ensuring that protesters who have been adversely affected by allegedly significant error during the procurement process have a forum available to vent their grievances." Data Gen. Corp., 78 F.3d at 1563. Panels of the United States Court of Appeals for the Federal Circuit, however, have taken different approaches regarding the evidence required to satisfy the "substantial chance" test in a bid protest case. Compare Info. Tech. & Applications, 316 F.3d at 1319 (holding that a protestor must establish "that its chance of winning the award was `greater than . . . insubstantial . . . if successful on the merits of the bid protest'"), with Alfa Laval, 175 F.3d at 1367 (holding that a protester is not required to show that, but for the alleged error, the protester would have been awarded the contract; instead a protester must show there was a `substantial chance' it would have received the contract but for the alleged error), with Data Gen. Corp., 78 F.3d at 1562-63 (holding "the appropriate standard is that, to establish prejudice, a protestor must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protestor would have been awarded the contract. This is a refinement and clarification of the `substantial chance' language[.]"); cf. United States v. Int'l Bus. Machines Corp., 892 F.2d 1006, 1011 (Fed. Cir. 1990) 25

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("[O]nly the second-lowest bidder has a direct economic interest in the award of the contract. Therefore, only the second-lowest bidder is an interested party entitled to protest the award of the contract, . . . because only it stands to receive the contract in lieu of the challenged awardee[.]") (internal citation omitted). Assuming arguendo that the highest "prejudice" standard is applicable in this case, nevertheless, CHS can meet this standard since CHS's proposal initially was rated higher than Wyle's proposal. See AR 618-20, 4432-33, 5033-34. At the core of CHS's Amended Complaint is the allegation that the SSA improperly directed the SEB to re-evaluate the Safety and Health Plan Subfactor. As a consequence, Wyle's Safety and Health Plan Subfactor rating was increased. See AR 5033-34; see also AR 4432-34, 5121. CHS's rating was reduced from "Excellent" to "Very Good" and the overall score was reduced by 15 points. In contrast, Wyle's rating was increased from "Good" to "Very Good," and the overall score was increased by 21 points. Id. The SEB's final scoring, however, resulted in a difference of only 8.5 points out of a possible 1,000 total points. See AR 5034. Therefore, the record evidences that but for the re-evaluation, CHS had a "substantial chance" of being awarded the OMOH Contract. See Galen Med. Assocs., 369 F.3d at 1331 (affirming the lower court's decision that but for the alleged errors, a first runner-up bidder has a substantial chance of receiving the award). Accordingly, the court has determined that CHS has established prejudice to challenge NASA's action and award of the OMOH Contract to Wyle. 2. Intervenor Wyle Laboratories, Inc.

On November 17, 2005, the court granted Wyle's November 17, 2005 Motion to Intervene as a Matter of Right, pursuant to Rule 24(a) of the United States Court of Federal Claims, that provides: Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. RCFC 24(a) (emphasis added); see also Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989) ("Intervention is proper only to protect those interests which are of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment." (internal quotations & citations omitted)). The United States Court of Appeals for the Federal Circuit has held that "the requirements for intervention are to be construed in favor of intervention." Am. Mar. Transp., 870 F.2d 1561 (citing Westlands Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir.1983)).

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Wyle also has "an interest relating to property . . . which is the subject of [this] action," because Wyle was awarded the OMOH Contract that CHS protests by this action. Therefore, a final judgment in favor of CHS will "impair" Wyle's "ability to protect that interest." RCFC 24(a). The United States Court of Appeals for the Federal Circuit requires the trial court to evaluate three factors in determining whether an intervention is timely: "(1) the length of time during which the would-be intervenor[s] actually knew or reasonably should have known of [their] right[s;] (2) whether the prejudice to the rights of existing parties by allowing intervention outweighs the prejudice to the would-be intervenor[s] by denying intervention[;] (3) existence of unusual circumstances militating either for or against a determination that the application is timely." Belton Indus., Inc. v. United States, 6 F.3d 756, 762 (Fed. Cir. 1993) (citations omitted & certain alterations in original). In this case, Wyle filed a Motion to Intervene seven days after CHS filed the Complaint. Therefore, Wyle's Motion to Intervene was timely. In addition, there is no evidence suggesting that Wyle's intervention in this action prejudi