Fyi-For Your Information, Inc. v. United States

majority opinion

In the United States Court of Federal Claims

FYI-FOR YOUR INFORMATION, INC.,

Plaintiff,

No. 26-cv-0032

Filed Under Seal: August 24,

THE UNITED STATES, 2026

Defendant, Publication: September 10, 2026 1

and

C EVANS CONSULTING LLC,

Intervenor-Defendant.

Craig A. Holman of Arnold & Porter Kaye Scholer LLP, Washington, D.C., argued for Plaintiff. With him on the briefs were Roee Talmor and Dustin Vesey of Arnold & Porter Kaye Scholer LLP, Washington, D.C.

Blake W. Cowman of the United States Department of Justice, Civil Division, Washington, D.C., argued for Defendant. With him on the briefs were Douglas K. Mickle, Patricia M. McCarthy, and Brett A. Shumate of the United States Department of Justice, Civil Division, Washington, D.C., and James E. Hicks of the Drug Enforcement Administration.

Ryan C. Bradel of Ward & Berry, PLLC, Washington, D.C., argued for Intervenor-Defendant. With him on the briefs were Nicholas L. Perry, P. Tyson Marx, and Steffanie Lee of Ward & Berry, PLLC, Washington, D.C.

This Memorandum and Order was filed under seal on August 24, 2026, in accordance with the Protective Order entered in this case. See ECF No. 7. On September 8, 2026, the parties filed a Final Consensus Proposed Redacted Version proposing redactions to the Memorandum and Order. The sealed and public versions of this Memorandum and Order are identical, except for redactions, this footnote, and the addition of the publication date.

MEMORANDUM AND ORDER

This post-award bid protest involves the delayed receipt of a quoter’s email, a raft of

alleged evaluation errors, and an agency best value tradeoff evaluation justifying payment of a

0.78% higher price for a higher-rated proposal. In June 2025, Plaintiff FYI-For Your Information,

Inc. (Plaintiff or FYI) submitted a quote for a contract to provide Human Capital Support Services

for the Drug Enforcement Administration (DEA), an agency within the United States Department

of Justice (DOJ). FYI, the incumbent contractor for this service, and Intervenor-Defendant C

Evans Consulting LLC (Intervenor or CEC) each received the highest adjectival ratings available

in DEA’s evaluation. FYI proposed a slightly lower price than CEC—0.78% lower. However,

the DEA determined that CEC’s quote provided benefits above and beyond what the adjectival

ratings reflected, and that those benefits outweighed CEC’s slightly higher price. Accordingly,

the DEA awarded CEC the contract under this Subpart 8.4 procurement.

FYI, in turn, lodged this protest, challenging the award’s rationality and compliance with

procurement law. FYI first argues that a delay in receipt caused by DEA’s email server should

have disqualified CEC’s quotation as late. In response to a request from the Contracting Officer

(CO), CEC clarified an obvious miscalculation in its quotation. To clarify and correct this

miscalculation, CEC modified several tables in its quotation. The CO directed CEC to “[p]lease

reply to this email confirming your original submission or by submitting a corrected copy not later

than 1:30PM, ET, today, June 4, 2025, in order for your quote to be considered.” Tab 14c,

Administrative Record (AR) 704. CEC’s president hit the send button on its email containing the

modification at 1:01 p.m. on June 4, 2025. However, due to an email security software hold,

CEC’s email did not arrive in the CO’s inbox until 1:48 p.m. that day.

FYI argues that DEA could not consider CEC’s modifications because the email arrived in

the DEA CO’s inbox after the deadline. The Court agrees. Applicable law is clear and direct here.

As explained further below, the Federal Acquisition Regulation (FAR) classifies CEC’s reply to

DEA as a modification since CEC changed its quotation to correct a mistake. The “late-is-late

rule,” which applies to this procurement, mandates a strict lateness rule for the receipt of

“[a]ny offer, modification, revision, or withdrawal of an offer.” FAR 52.212-1(f)(2)(i). The CO

received CEC’s email, containing the modified quotation, after the 1:30 p.m. deadline. While

exceptions to the “late-is-late rule” exist, at oral argument Defendant disavowed the government

control exception, which potentially could have permitted DEA to consider CEC’s modified

quotation. With Defendant’s unequivocal disavowal, however, no exception is available here; the

late-is-late rule imposes a bright line rule, and FYI demonstrates success on the merits based on a

violation of the rule. Simply put, under the facts in this record, DEA was not permitted to consider

CEC’s modified quotation in making its award decision.

Although FYI succeeds on the merits based on DEA’s violation of the late-is-late rule, for

completeness the Court evaluates, and rejects, FYI’s other challenges to DEA’s evaluation. First,

FYI challenges DEA’s assessment of each of the three non-price factors in the evaluation, through

which DEA determined that CEC offered a superior proposal. FYI disagrees with DEA about

which quote offered a superior technical solution; however, Congress has assigned DEA, not this

Court, the power to decide what presents the most value to the Government. DEA’s Technical

Evaluation Panel (TEP) and CO each analyzed the quotes in detail and explained why CEC

provided a better technical solution across the non-price factors. As this Court will not disturb a

rational and reasonably explained evaluation, FYI’s arguments challenging the evaluation of each

factor fail. This Court’s role is to ensure that the agency has rationally made and explained its

decision in accordance with procurement law, and DEA did so here.

Next, FYI challenges DEA’s best value tradeoff as irrational. FYI and CEC received the

same adjectival scores, but FYI’s TEP and CO each determined that CEC presented a technically

superior quote. FYI’s quoted price was 0.78% less than CEC’s quoted price. The CO determined

that the technical advantages justified the higher price. The Court finds that DEA rationally, albeit

briefly, explained that CEC’s technical advantages justified its slightly higher price. An agency’s

discretion reaches its zenith in the best value determination, and the Court declines to disturb

DEA’s rationally justified determination.

Finally, injunctive relief is appropriate in this situation, where DEA contravened

procurement law, FYI faces irreparable harm if the violation is not corrected, and the public

interest favors proper compliance with procurement law. Accordingly, the Court enjoins the DEA

from proceeding with its award to CEC under the present Request for Quotation to the extent the

award is based on the unlawful consideration of CEC’s modified quotation. The DEA shall retain

discretion to determine how it will otherwise proceed, if at all, with its procurement of Human

Capital Support Services.

For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART

Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 24). The Court GRANTS

IN PART and DENIES IN PART Defendant’s Cross-Motion for Judgment on the Administrative

Record (ECF No. 30) and GRANTS IN PART and DENIES IN PART Intervenor-Defendant

CEC’s Cross-Motion for Judgment on the Administrative Record (ECF No. 28).

BACKGROUND

I. The Request for Quotation

DEA’s Human Resource Division is responsible for “providing human capital strategies

and tools for recruiting, hiring, developing, retaining, and transitioning a highly skilled and highperforming workforce to support mission accomplishments.” Tab 11, Administrative Record (AR)

251. In support of that mission, DEA hires contractors to provide “Human Resources (HR)

Operational Activities.” Id.

On May 2, 2025, the Drug Enforcement Administration (DEA) issued a Request for

Quotation (RFQ) seeking “Human Capital Support Services.” 2 Tab 10, AR 99, Tab 11, AR 222.

DEA subsequently issued three amendments to the RFQ. See AR Tabs 11–13. The RFQ aimed

to award a single Time and Materials (T&M)/Labor Hour (LH) blanket purchase agreement under

the streamlined acquisition procedures of FAR Subpart 8.4. Tab 11, AR 285. The procurement

was designated as a set-aside for a Women-Owned Small Business with a General Services

Administration (GSA) Federal Supply Schedule (FSS) contract. Tab 11, AR 245. Generally, the

contractor’s responsibilities “include position classification, recruitment, internal placement,

employee relations, benefits and services, collecting and processing data, and record keeping.”

Tab 11, AR 251. The RFQ predicted that a contractor would need 10-35 employees across various

labor categories to perform under the contract. Tab 11, AR 266. The RFQ anticipated award of a

one-year contract with a one-year option period, so that performance “shall not exceed a maximum

of twenty-four (24) consecutive months from date of award.” Tab 11, AR 240. The RFQ also

incorporated FAR 52.212-1. Tab 11, AR 276, 317.

References to the “RFQ” are to the RFQ as originally published, see Tab 10, AR 99–221, and RFQ Amendment 1, see Tab 11, AR 222–347. Some documents in the Administrative Record also refer to the RFQ as the “Solicitation” or “solicitation.” See, e.g., Tab 18d, AR 1146.

The RFQ required quoters to submit two volumes in their quote: Volume I was the

“Technical Quote,” and Volume II was the “Business Quote.” Tab 11, AR 277. Volume I

addressed the requirements of the Statement of Work (SOW) and required each quoter to explain

its “capabilities and the means to be used to satisfy the requirements.” Id. Specifically, Volume I

covered three factors: Factor 1, Technical Capability (Factor 1); Factor 2, Transition Phasein/Transition Phase-out (Factor 2); Factor 3, Past Performance (Factor 3). Tab 11, AR 278. For

Factor 1, each quoter was required to “demonstrate its technical capability to accomplish or satisfy

each of the tasks in the SOW.” Id. DEA instructed that each Factor 1 description must be “specific,

detailed, and complete enough to clearly and fully demonstrate an understanding of the

requirement.” Id. Among other requirements, each offeror had to “demonstrate the ability to

provide high-volume recruitment and onboarding support under tight deadlines.” Id.

For Factor 2, each offeror would “demonstrate its ability to implement a transition plan

without impacting the operations of the program during the phase-in and phase-out periods during

the contract performance.” Id. Factor 2 included two subfactors: Transition Phase-in and

Transition Phase-out. Tab 11, AR 278–79. For Transition Phase-in, requirements included

“Monitoring and Reporting of Transition Progress” at the start of the quoter’s performance. Tab

11, AR 279. For Transition Phase-out, the RFQ required quoters to present a plan for the

transition-out period “in the event that the Quoter is not selected for a follow-on award.” Tab 11,

AR 279.

Finally, Factor 3 directed quoters to “provide examples of real work with actual results of

the prime contractor and major subcontractor(s) to perform the requirements as described in the

solicitation.” Tab 11, AR 279. Specifically, each quoter was directed to “provide a list of up to

three (3) successful contracts with past performance history from the past three (3) years that are

representative of the Quoter’s capability to provide services with similar scope, magnitude, and

complexity to that stated in the SOW.” Id. The RFQ stated that DEA could, but was not bound

to, consider past performance information from a variety of sources:

The Government will supplement the information provided by the Quoter with

information the Government obtains through reference checks, its own

knowledge/experience, and/or from other sources. These sources may include, but

not necessarily be limited to, other Government contracting offices and

Performance Assessment Reporting System (CPARS), FAPIIS, etc. Past

performance will be a subjective assessment based upon all relevant facts and

circumstances including contract past performance for smaller requirements.

Tab 11, AR 280.

Volume II, the Business Quote, included a price quote. Tab 11, AR 280. “Price quote

shall include a price for each and every [Contract Line Item Number (CLIN)], on an all or none

basis, multiplied by the estimated quantity per CLIN and sum of all CLINs per year in accordance

with the Schedule of Supplies.” Id. The RFQ specified the pricing information that DEA would

use to assess each bid: “[t]he Quoter shall propose a price per contract line item number (CLIN)

and fill in the unit prices.” Id. Attached to the RFQ was a Schedule of Supplies/Services, which

listed the 20 CLINs that each quote must include. Tab 11, AR 246–47. Each CLIN corresponded

to a labor category within the RFQ; quotes had to provide a unit price (dollars per hour worked)

for each labor category. Id. Notable to the present case, the RFQ specified the quantity (number

of hours) that the quote had to include. See id. For example, for CLIN 0005, Classification

Specialist, the RFQ mandated that quotes would propose 7,680 hours as the quantity, then each

quoter had to fill in the unit price and the total amount, which would equal 7,680 hours multiplied

by the contractor-supplied unit price. See Tab 11, AR 246.

DEA’s needs. Based on C. Evans explicitly detailed approach and lower labor

costs, C. Evans, LLC offers the government value above and beyond.

Tab 24, AR 1178. The CO offered a similarly detailed analysis of FYI’s quote:

The TEP thoroughly reviewed and rated the technical quote submitted by FYI. The

TEP designated FYI with a rating of High Confidence, indicating that little to no

government intervention is anticipated for successful performance of the work.

Consequently, FYI was determined to be Technically Acceptable. The TEP found

that FYI has demonstrated proficiency performing core human capital support

services. Their technical approach addressed all the aspects of the SOW,

addressing each task and deliverable. FYI demonstrated experience in providing

human resource staffing of similar size, scope, and complexity, including other

large contracts. The evaluators rated the overall proposal as High, meeting the

minimum requirement of the RFQ, noting that as the incumbent, there is no

requirement for a transition period.

Tab 24, AR 1180. After these individualized assessments of each quoter’s technical evaluation

and a comparison of line-item prices offered by each quoter, the CO wrote one paragraph directly

referencing the best value tradeoff: “[t]he High Confidence rating of C. [Evans] Consulting, LLC’s

quote across all non-price factors along with their exceeding requirements offsets the higher price

of their quote when compared to lower priced proposals which received equal or lower confidence

level ratings across the non-price factors.” Tab 24, AR 1189.

On July 17, 2025, DEA notified FYI that it had awarded CEC the contract. Tab 23a, AR

1168–69.

VI. GAO Protest

On July 28, 2025, FYI filed a post-award protest before the Government Accountability

Office (GAO). Tab 29, AR 1286. The post-award protest challenged DEA’s technical evaluation

of the three factors and the resulting best value tradeoff determination. Tab 29, AR 1287–88. On

September 4, 2025, FYI filed a supplemental GAO protest which raised new challenges to DEA’s

award. Tab 41, AR 2387. As the record available to FYI was more limited before the GAO, FYI’s

current late-is-late rule argument was not pertinent to the GAO proceeding. On December 12,

2025, GAO denied FYI’s protest. Tab 48, AR 2550–61.

PROCEDURAL HISTORY

On January 9, 2026, Plaintiff filed its Complaint, and on January 21, 2026, the Court issued

a Scheduling Order that included a briefing schedule and an oral argument date. ECF Nos. 1

(Complaint); 20 (Scheduling Order). Defendant submitted the AR on February 9, 2026, consistent

with the Scheduling Order. Scheduling Order at 1; ECF No. 22.

On February 23, 2026, Plaintiff filed its Motion for Judgment on the Administrative Record

and accompanying Memorandum of Law. ECF Nos. 24, 24-1 (Pl. MJAR). Plaintiff also filed an

Amended Complaint on the same day as its MJAR. ECF No. 23 (Amended Complaint). Plaintiff

argued that the AR revealed that CEC had submitted its June 4 email late and accordingly CEC

should have been disqualified. Pl. MJAR at 175 (“The DEA’s failure to exclude CEC or even to

consider CEC’s noncompliance prejudiced FYI, the rightful awardee.”).

On March 7, 2026, Defendant filed a Motion for Leave to Correct and Supplement the

Administrative Record, which Plaintiff opposed. ECF No. 27 at 1. On March 9, 2026, Defendant

filed its Cross-Motion for Judgment on the Administrative Record and Response to Plaintiff’s

MJAR. ECF No. 30 (Def. MJAR). On the same day, CEC filed its own Cross-Motion for

Judgment on the Administrative Record and Response to Plaintiff’s MJAR. ECF No. 28 (CEC

MJAR) (collectively, with Pl. MJAR and Def. MJAR, the MJARs).

On March 10, 2026, the Court stayed further briefing on the MJARs to brief and resolve

Defendant’s Motion for Leave to Correct and Supplement the Administrative Record. ECF No.

Citations throughout this Memorandum and Order correspond to the ECF-assigned page numbers, which do not always correspond to the pagination within the document.

32 at 3 (“The Court will consider the arguments concerning the supplementation of the record prior

to ruling upon the Motions for Judgment on the Administrative Record, as Defendant and

Intervenor-Defendant seek to rely upon documents subject to the Motion to Supplement.”).

On March 12, 2026, Defendant filed a Corrected Motion for Leave to Correct and

Supplement the Administrative Record. ECF No. 34 (Corrected Motion to Supplement). On

March 19, 2026, Plaintiff filed its opposition to the Corrected Motion to Supplement. ECF No.

36. On March 25, 2026, Defendant and CEC submitted their respective Replies in support of the

Corrected Motion to Supplement. ECF Nos. 40, 41.

On March 24, 2026, Defendant filed a Motion for Voluntary Remand. ECF No. 39. On

April 1, 2026, Plaintiff filed a Response in opposition to the Motion for Voluntary Remand, and

on April 6, 2026, Defendant filed a Reply in support of the Motion for Voluntary Remand. ECF

Nos. 42, 44. CEC did not file a brief related to Defendant’s Motion for Voluntary Remand.

On May 19, 2026, the Court conducted oral argument on Defendant’s Corrected Motion

for Leave to Correct and Supplement the Administrative Record and its Motion for Voluntary

Remand. See Minute Entry, dated May 19, 2026. On May 20, 2026, the Court denied Defendant’s

Motion for Voluntary Remand and granted in part and denied in part its Motion for Leave to

Correct and Supplement the Administrative Record. See Minute Entry, dated May 20, 2026; ECF

No. 47 at 1. The Court ordered the parties to propose a “schedule for any proposed Consent Motion

to Supplement the Administrative Record with information about control over the Proofpoint email

server at issue in this action.” Id. at 2.

On May 27, 2026, the parties confirmed in a Joint Status Report that the DEA’s voluntary

partial stay of the underlying award would extend “through August 24, 2026.” ECF No. 49 at 2.

The parties also proposed a schedule for further briefing, which the Court adopted. Id. at 1–2;

ECF No. 50 at 1.

On June 16, 2026, the Court granted Defendant’s Consent Motion for Leave to Supplement

the Administrative Record, with information concerning control over the Proofpoint email server

at issue in this action. ECF No. 52 (Consent Motion); Minute Order, dated June 16, 2026. On

June 18, 2026, Defendant submitted the corrected AR. ECF No. 55.

On June 26, 2026, Plaintiff filed its Reply in support of its MJAR and Response to

Defendant and CEC’s MJARs. ECF No. 60 (Pl. Reply). On July 8, 2026, Defendant and CEC

filed their Replies in support of their respective MJARs. ECF Nos. 61 (CEC Reply), 64 (Def.

Reply).

On August 4, 2026, the Court held oral argument on the parties’ MJARs. See Minute Entry,

dated Aug. 4, 2026. The MJARs are now fully briefed and ripe for review.

APPLICABLE LEGAL STANDARDS

The Tucker Act, 28 U.S.C. § 1491(b)(1), as amended by the Administrative Dispute

Resolution Act of 1996, affords this Court with jurisdiction over bid protests. The Court analyzes

the procurement under the Administrative Procedure Act’s (APA) standards to determine whether

the Agency “acted without rational basis or contrary to law when evaluating the bids and awarding

the contract.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005); 28 U.S.C.

§ 1491(b)(4); see Oak Grove Techs., LLC v. United States, 116 F.4th 1364, 1374 (Fed. Cir. 2024).

The Court reviews the procurement under the standards set forth in the APA. 28 U.S.C.

§ 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s decision

pursuant to the standards set forth in section 706 of title 5.”); Harmonia Holdings Grp., LLC v.

United States, 20 F.4th 759, 766 (Fed. Cir. 2021). The APA requires a reviewing court to

determine whether an agency’s action was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284 (1974). Thus, to prevail in a post-award bid

protest, a plaintiff must demonstrate that “(1) ‘the procurement official’s decision lacked a rational

basis’ or (2) ‘the procurement procedure involved a violation of regulation or procedure.’”

DynCorp Int’l v. United States, 10 F.4th 1300, 1308 (Fed. Cir. 2021) (DynCorp I) (quoting

WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1377 (Fed. Cir. 2020)).

When a bidder alleges that the procurement official’s decision lacked a rational basis, the

Court reviews “whether the contracting agency provided a coherent and reasonable explanation of

its exercise of discretion.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018)

(quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)). As

the United States Court of Appeals for the Federal Circuit (Federal Circuit) has explained, “the

disappointed bidder bears a heavy burden of showing that the award decision had no rational

basis.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001)); see

also Impresa, 238 F.3d at 1333 (noting a similarly high burden for claims of a violation of

regulation or procedure, which must involve “a clear . . . violation of applicable statutes or

regulations” (quoting Kentron Hawaii, Ltd v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973))).

Consistent with this heavy burden, agency decisions are “entitled to a presumption of regularity.”

Impresa, 238 F.3d at 1338 (citing Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626–27 (1986)). The

Court’s “role in reviewing procurement decisions . . . is not to evaluate the offerors’ proposals

anew or to substitute [its] judgment for that of the agency.” Harmonia Holdings Grp., LLC v.

United States, 999 F.3d 1397, 1408 (Fed. Cir. 2021); see also Honeywell, Inc. v. United States,

870 F.2d 644, 648 (Fed. Cir. 1989) (“If the court finds a reasonable basis for the agency’s action,

the court should stay its hand even though it might, as an original proposition, have reached a

different conclusion as to the proper administration and application of the procurement

regulations.”) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).

Rather, courts “will uphold a decision of less than ideal clarity if the agency’s path may reasonably

be discerned.” Bowman Transp., 419 U.S. at 286. Indeed, “[a]lthough the inquiry under the APA

‘is to be searching and careful, . . . [t]he court is not empowered to substitute its judgment for that

of the agency.’” Insight Pub. Sector, Inc. v. United States, 161 Fed. Cl. 760, 786 (2022) (quoting

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416–20 (1971)). The decision lacks

a rational basis when the agency “entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the agency, or . . .

is so implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir.

2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)). When a disappointed bidder alleges a violation of a regulation or procedure, the Court

reviews whether there was “a clear and prejudicial violation of applicable statutes or regulations.”

Impresa, 238 F.3d at 1333 (quoting Kentron, 480 F.2d at 1169.).

Where the Court finds that an agency decision lacked a rational basis, the Court must also

evaluate the factual question of prejudice. Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th

994, 998 (Fed. Cir. 2021); WellPoint Mil. Care, 953 F.3d at 1377. A protestor establishes prejudice

by showing “that there was a ‘substantial chance’ it would have received the contract award but

for” that error. Sys. Stud. & Simulation, 22 F.4th at 998 (quoting Bannum, 404 F.3d at 1353). A

protestor cannot prevail if it does not establish prejudice. DynCorp I, 10 F.4th at 1308 (“[T]o

prevail in a bid protest, a protestor must show a significant, prejudicial error in the procurement

process.” (quoting WellPoint Mil. Car, 953 F.3d at 1377)); DevTech Sys., Inc. v. United States,

176 Fed. Cl. 297, 313 (2025).

In the Court of Federal Claims, bid protests are adjudicated under Rule 52.1(c), which

provides an expedited trial on a “paper record, allowing fact-finding by the trial court.” Bannum,

404 F.3d at 1356 (referencing Rule 56.1, which was replaced by Rule 52.1(c)); see Rule 52.1(c).

Unlike at summary judgment, genuine disputes of material fact do not preclude a court from

granting a motion for judgment on the administrative record. Bannum, 404 F.3d at 1357. This

Court is also empowered to provide any relief, including declaratory or injunctive relief, that it

deems proper. 28 U.S.C. § 1491(b)(2); Oak Grove, 116 F.4th at 1375. “[T]he Court of Federal

Claims has broad equitable powers to fashion an appropriate remedy” in bid protest cases. Turner

Constr. Co. v. United States, 645 F.3d 1377, 1388 (Fed. Cir. 2011). To that end, this Court may

remand the procurement decision back to an agency for further factual findings or reconsideration

according to the Court’s directions. See Rule 52.2; 28 U.S.C. § 1491(a)(2) (“In any case within

its jurisdiction, the [Court of Federal Claims] shall have the power to remand appropriate matters

to any administrative or executive body or official with such direction as it may deem proper and

just.”); see GovCIO, LLC v. United States, 177 Fed. Cl. 579, 596 (2025).

DISCUSSION

Plaintiff asserts that it has identified several errors in DEA’s evaluation and subsequent

award to CEC that should justify overturning the award. Pl. MJAR at 6–9. Defendant and

Intervenor argue, to the contrary, that Plaintiff has not identified any prejudicial errors in the

evaluation and award, so that the Court should not disturb the award to CEC. Def. MJAR at 9;

CEC MJAR at 9.

First, Plaintiff raises several arguments concerning CEC’s June 4 clarifications email. Pl.

MJAR at 6–7. FYI contends that (i) the DEA could not have sought clarifications at all with CEC

to correct the error in CEC’s bid, and (ii) it was improper for the DEA to seek clarifications from

CEC but not FYI. Id. at 7. FYI additionally argues that the late-is-late rule applied a strict

timeliness requirement to the CO’s receipt of a modified bid, and that CEC’s email’s lengthy

journey through DOJ’s security software made the email late. Id. at 6–7. A violation of the lateis-late rule would lead to the disqualification of CEC’s bid, Plaintiff asserts. Id. Defendant and

CEC contend, and the Court agrees, that DEA did not violate any fairness rules when it solicited

the clarification. Def. MJAR at 19–27; CEC MJAR at 40–54. However, FYI is correct that the

late-is-late rule squarely applied to CEC’s June 4 email because the correction to CEC’s quote

contained within the email qualified as a modification under the FAR. Pl. MJAR at 7. As

explained further below, DEA’s consideration of CEC’s June 4 email violated the late-is-late rule,

and this violation constitutes prejudicial error.

Second, FYI argues that it has identified three errors in DEA’s evaluation of non-price

factors: one error for each non-price factor that the agency evaluated. Pl. MJAR at 7–9. Although

Plaintiff prevails on the merits based on the violation of the late-is-late rule alone, the Court

assesses the other issues raised in the MJARs for completeness. Plaintiff disputes the strengths

assigned to CEC and the lack of strengths assessed for its own offer. See id. at 25–41. Defendant

and CEC argue, and the Court agrees, that DEA’s evaluation of non-price factors was rational and

properly documented. Def. MJAR at 27–43; CEC MJAR at 18–36.

Third, FYI argues that DEA irrationally determined that CEC’s more expensive proposal

offered the best value and that DEA insufficiently explained the tradeoff between price and

technical quality that led to the award decision. Pl. MJAR at 40. Defendant and CEC argue, and

the Court agrees, that DEA properly explained that, in DEA’s discretion, CEC offered advantages

that outweighed the less-than-one-percent price disparity. Def. MJAR at 43–46; CEC MJAR at

36–40.

Finally, the Court addresses injunctive relief. As Plaintiff demonstrates success on the

merits based on the violation of the late-is-late rule alone, the Court enjoins the DEA from

proceeding with its award to CEC under the present Request for Quotation to the extent the award

is based on DEA’s unlawful consideration of CEC’s late-received, modified quotation. The DEA

retains discretion to determine how it will otherwise proceed, if at all, with its procurement of

Human Capital Support Services.

I. CEC’s Clarifications Email

A. DEA’s Choice to Request Clarifications from CEC but Not FYI

FYI asserts that DEA purportedly held discussions with CEC and thus “had to conduct

discussions with all offerors.” Pl. MJAR at 25. Defendant counters that the requirement to conduct

discussions with all offerors does not apply to this Subpart 8.4 procurement, which is instead

governed by a requirement that “DEA treat[] all offerors fairly and impartially.” Def. MJAR at

24.

The FAR Part 15 requirement to hold discussions equally with all offerors does not apply

to this Subpart 8.4 procurement, and the RFQ does not incorporate FAR 15.306. See Tabs 10, 11.

FAR Part 15 requirements (such as the discussions requirements in FAR 15.306(d)) do not apply

in Subpart 8.4 procurements unless they are specifically incorporated into the procurement. FAR

8.404(a); see Integrated Fin. & Acct. Sols., LLC v. United States, 161 Fed. Cl. 475, 491 (2022);

Unisys Corp. v. United States, 89 Fed. Cl. 126, 140 (2009). Plaintiff does not cite any precedent

or section of the RFQ 6 that would require DEA to communicate equally with all quoters. See Pl.

MJAR at 22–25. Instead, in a FAR Subpart 8.4 procurement, all communications between the

agency and quoters must reflect fairness, as the FAR requires for all procurement activities.

Advantaged Sols., Inc. v. United States, 179 Fed. Cl. 801, 814 (2026) (upholding unequal

discussions because agency “acted reasonably and fairly”); Unisys, 89 Fed. Cl. at 140 (applying

“requirement of fundamental fairness”). Indeed, the FAR requires that “[a]ll contractors and

prospective contractors shall be treated fairly and impartially but need not be treated the same.”

FAR 1.102-2(c)(3) (emphasis added).

FYI complains that if CEC had the chance to correct a minor typographical error in its

quote, FYI also deserved a chance to communicate with DEA about “supposed past performance

issues with FYI’s incumbent performance.” Pl. MJAR at 25. FYI argues that if it had the chance

to hear about past performance concerns, it could have substantively modified its proposal “by

providing a copy of the incumbent CPAR the evaluators claimed was missing” or by lowering its

quoted price. Id. In Unisys, which also involved a Subpart 8.4 procurement, communications with

the eventual awardee were deemed fair because they “simply allowed [the agency] to confirm”

aspects of the offeror’s proposal and did not allow an offeror to make material changes to its

proposal. Unisys, 89 Fed. Cl. at 141. It was fair that the disappointed offeror did not receive a

Plaintiff argues that the incorporation of FAR 52.212-1(g) in the RFQ “imports traditional discussions standards”; however, Plaintiff does not identify any specific language in the provision that would import discussions standards. Pl. MJAR at 22. FAR 52.212-1(g) states that “[t]he Government intends to evaluate offers and award a contract without discussions with offerors,” and that “the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary.” FAR 52.212-1(g). Such language does not invoke the FAR Part 15 discussion requirements or a requirement that discussions be held with all offerors. See Unisys, 89 Fed. Cl. at 139 (finding that RFQ statement that agency “may make award based on initial offers received, without discussion of such offers” did not incorporate FAR Part 15 discussion standards into Subpart 8.4 procurement).

chance to substantively amend its proposal because the agency’s “award decision was based on

both [offerors’] initial prices and technical proposals.” Id. (emphasis in original). Similarly, here

DEA’s clarification simply allowed CEC to correct typographical errors in the quote for mandated

labor hours in one CLIN and for one price field where the multiplication was facially incorrect,

without making any substantial changes, and FYI had not made equivalent typographical errors

that could be corrected without substantively changing its quote. See Tab 14b, AR 367, 548, Tab

14c, AR 704–05. As DEA ultimately made its decision based on the information that CEC and

FYI had each originally intended to submit to DEA, the complained of communications with CEC

about correcting the typo were not unfair. See Unisys, 89 Fed. Cl. at 141. DEA acted “reasonably

and fairly” when it requested CEC correct a minor typographical error but did not provide FYI

with a chance to make substantive changes to its proposal. Advantaged Sols., 179 Fed. Cl. at 814.

B. Clarifications or Discussions

Additionally, even if the equal discussion requirement of FAR 15.306 applied, DEA still

would not have violated that requirement. It is evident that DEA engaged in clarifications with

CEC, not discussions. An agency that engages in clarifications, unlike discussions, need not

engage equally with each offeror. Compare FAR 15.306(a) (containing no requirement that

agencies conduct clarifications with all offerors), with FAR 15.306(d)(3) (requiring that

discussions be conducted with “each offeror still being considered for award”); see ENGlobal

Gov’t Servs., Inc. v. United States, 159 Fed. Cl. 744, 765 (2022) (“[U]nlike discussions, the

government is permitted to engage in clarifications with fewer than all offerors.”). Thus, even if

required to engage equally in discussions, DEA would not have violated that requirement.

FYI contends that DEA engaged in discussions with CEC because DEA “allowed CEC to

revise multiple parts of its quote.” Pl. MJAR at 24. Defendant argues, to the contrary, that “the

communications at issue here were clarifications, not discussions.” Def. MJAR at 25 (emphasis

added). CEC similarly asserts that “the exchange between DEA and CEC concerning CEC’s

corrected quotation constituted clarifications, not discussions.” CEC MJAR at 48 (emphasis

added).

It is well established that “[c]larifications are limited exchanges, between the Government

and offerors, that may occur when award without discussions is contemplated.” FAR 15.306(a)(1).

In contrast, the FAR also creates a category of exchanges before award called “[d]iscussions,”

which “are tailored to each offeror’s proposal, and must be conducted by the contracting officer

with each offeror within the competitive range.” FAR 15.306(d)(1). “[T]he term ‘discussions’

has a specific legal definition: ‘discussions involve negotiations’ and ‘are undertaken with the

intent of allowing the offeror to revise its proposal.’” Galen Med. Assocs., Inc. v. United States,

369 F.3d 1324, 1332 (Fed. Cir. 2004) (quoting Info. Tech. & Applications Corp. v. United States,

316 F.3d 1312, 1321 (Fed. Cir. 2003)). “[T]he ‘acid test for deciding whether discussions have

been held is whether it can be said that an offeror was provided the opportunity to revise or modify

its proposal.’” Insight Pub. Sector, 161 Fed. Cl. at 803 (quoting Davis Boat Works, Inc. v. United

States, 111 Fed. Cl. 342, 353–54 (2013)).

“Clarifications are not to be used to cure proposal deficiencies or material omissions,

materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.”

Dell Fed. Sys., 906 F.3d at 998 (quoting JWK Int’l Corp. v. United States, 52 Fed. Cl. 650, 661

(2002)); see Kropp Holdings, Inc. v. United States, 176 Fed. Cl. 512, 540 (2025) (“Any exchanges

that cure, or attempt to cure, a material error are considered discussions under the FAR.”).

However, clarifications are allowed to correct a cost calculation error in a proposal when “the

existence of the mistake and the amount intended by the offeror [are] clear from the face of the

proposal.” DynCorp Int’l LLC v. United States, 76 Fed. Cl. 528, 545 (2007) (DynCorp II) (quoting

IPlus, Inc., B298020, et al., 2006 CPD ¶ 90 (Comp. Gen. June 5, 2006)). “Importantly, the

agency’s characterization of its communications with a bidder, as ‘discussions’ or ‘clarifications,’

is entitled to deference.” Insight Pub. Sector, 161 Fed. Cl. at 803 (citing Info. Tech., 316 F.3d at

1323).

Here, CEC engaged in clarifications with DEA, rather than discussions, as CEC never had

“the opportunity to revise” its quotation. See Insight Pub. Sector, 161 Fed. Cl. at 803. Instead,

the record reveals that “the existence of the mistake and the amount intended by the offeror [are]

clear from the face of the proposal.” DynCorp II, 76 Fed. Cl. at 545 (quoting IPlus, Inc., B-298020,

et al., 2006 CPD ¶ 90 (Comp. Gen. June 5, 2006)). CEC makes two different calculation errors

for the same line item, CLIN 0005, in its original quotation. See Tab 14b, AR 367, 548. First,

CEC’s schedule of supplies reflects that CEC proposed to provide 7,680 hours of labor (the RFQ’s

requisite amount) in CLIN 0005 at a rate of $ per hour, for a total of $ . Tab 14b,

AR 367. However, the multiplication here is obviously incorrect, as multiplying the hours by the

quoted rate should have led to a product of $ . See id. Later, in the basis of estimates

within the quotation, CEC stated that, for CLIN 0005, it would provide 5,760 hours at a rate of

$ per hour, or a total of $ . Tab 14b, AR 548. The multiplication is correct, but

the proposed number of hours does not align with the schedule of supplies in the RFQ, which

requires each quoter to propose 7,680 hours for CLIN 0005. Tab 11, AR 246. Although each

mention of CLIN 0005 in CEC’s original quote included an unexplained mathematical or

typographical error, CEC’s proposed rate was the same: $ per hour. Tab 14b, AR 367, 548.

This proposed rate remained the same in the corresponding parts of CEC’s post-clarifications

quotation: $ . Tab 14c, AR 708, 716. The correction of the hours provided and the

multiplication error did not constitute a substantive revision to the quotation because only CEC’s

proposed unit price contributed to the CO’s analysis and best value tradeoff analysis, and the

quoted unit price remained static and did not change. See Tab 24, AR 1185. As CEC never

received an opportunity to “materially alter the technical or cost elements of the proposal,” DEA

engaged in clarifications, not discussion. See Dell Fed. Sys., 906 F.3d 998.

Minor clerical errors that are apparent on the face of an offer, such as the error in CEC’s

proposal, can be corrected through clarifications. See Aspire Therapy Servs. & Consultants, Inc.

v. United States, 166 Fed. Cl. 366, 377–78 (2023). In Aspire Therapy, an error in the number of

labor hours proposed was a minor clerical error when the error “should have been evident” because

an offeror typed “2,336” when it should have typed “2,366.” Id. at 378. This was an obvious

typographical error because the numbers “are off by one digit and appear so similar that the error

is easily overlooked by the naked eye.” Id. Similarly, here, CEC made obvious typographical

errors concerning the number of labor hours. In its original basis of estimates, CEC proposed

5,760 hours for CLIN 0005, when it should have proposed 7,680. See Tab 14b, AR 548. However,

the next line on the table (CLIN 0006) correctly includes 5,760 as the number of hours proposed.

Id. This difference—transposing the number of hours from CLIN 0006 to one line higher on CLIN

0005, rather than using the figure the RFQ mandated—is a minor clerical error because, like the

misplaced digit in Aspire Therapy, the lines on the chart “appear so similar that the error is easily

overlooked by the naked eye.” Aspire Therapy, 166 Fed. Cl. at 378; see also Galen Med. Assocs.,

369 F.3d at 1333 (Submission was a clarification if it “was in the nature of a correction of an

obvious mathematical error.”). Similarly, the multiplication error was “clear from the face of the

proposal.” DynCorp II, 76 Fed. Cl. at 545. As such, CEC’s proposal could be corrected through

clarifications, rather than discussions.

C. Violation of the Late-is-Late Rule

1. Applicability of the Late-is-Late Rule to CEC’s Modification

FYI contends that CEC’s clarification email arrived late in the CO’s inbox and should not

have been considered in the competition because such consideration violates the late-is-late rule.

Pl. MJAR at 17. The late-is-late rule applies a strict timeliness requirement based on the time that

certain communications are “received at the Government office,” rather than when

communications are sent. FAR 52.212-1(f)(2)(i). In the present procurement, the Rule itself was

expressly incorporated into the RFQ. Tab 11, AR 276, 317. FYI argues that CEC’s June 4 email

to DEA qualifies as a revision or modification, so that the late-is-late rule applies as a matter of

law. Pl. Reply at 9. Defendant and CEC counter that the late-is-late rule purportedly does not

apply to clarifications, so that the CO was not required to disqualify CEC’s quote. Def. MJAR at

20; CEC MJAR at 44.

As is the situation here, a late-is-late rule incorporated into an RFQ creates strict timing

deadlines for “[a]ny offer, modification, revision, or withdrawal of an offer.” FAR 52.212-1(f)(2)(i); see Tab 11, AR 276, 317 (incorporating FAR 52.212-1 into RFQ). A communication

that falls into any of those four categories that is “received at the Government office designated in

the solicitation after the exact time specified for receipt of offers is ‘late.’” Id. As the relevant

deadline is the time of receipt, a timely-sent email might still be late under the rule if technical

problems in the agency’s email system cause a late arrival to the CO’s inbox. See eSimplicity, Inc.

v. United States, 162 Fed. Cl. 372, 381 (2022) (affirming that late-is-late rule applies to timelysent email delayed by government’s technical problems and considering exceptions to late-is-late

rule). A late submission can only be considered if several requirements are met, including a

requirement that the CO “determines that accepting the late offer would not unduly delay

the acquisition.” FAR 52.212-1(f)(2)(i).

As explained below, in addition to being a clarification, CEC’s email constitutes a

modification to its quote, and accordingly the late-is-late rule applies here. The Court interprets

FAR clauses, like other federal regulations, according to typical statutory interpretation methods.

See Barry v. McDonough, 101 F.4th 1348, 1352 (Fed. Cir. 2024) (“When interpreting a regulatory

provision, we apply the rules of statutory construction.”); Goodman v. Shulkin, 870 F.3d 1383,

1386 (Fed. Cir. 2017); Rick Aviation, Inc. v. United States, 182 Fed. Cl. 53, 65–66 (2026) (applying

“rules of statutory construction” to interpret FAR 52.212-1(f)). The FAR defines each of the four

types of communications named in the late-is-late rule. See FAR 52.212-1(f)(2)(i). The relevant

meaning here for a “modification” is the definition of a “[p]roposal modification” set forth in FAR

Part 15, 7 which is one of at least three meanings of “modification” in the FAR. See FAR 15.001;

see also FAR 2.101 (defining physical “[m]odifications” that may be made to a commercial

product); FAR Part 43 (regulating “contract modifications,” which change contract terms during

The procurement at issue was conducted under FAR Subpart 8.4, and the version of the late-islate rule incorporated in the RFQ is written for commercial procurements conducted under Part 12. See Tab 24, AR 1173 (specifying use of Subpart 8.4); FAR 12.301(b)(1) (prescribing use of FAR 52.212-1). However, the Court finds that the definitions in Part 15 are instructive for the interpretation of the rule. Parts 8 and 12 do not define “modification,” “revision,” or “clarification.” See FAR Parts 8, 12. Further, each party to this case cites Part 15 to define at least one of these terms. See Pl. MJAR at 21; Def. MJAR at 20; CEC MJAR at 44. Additionally, the Federal Circuit has referenced other Parts of the FAR (besides Part 12) to interpret FAR 52.212-1. See Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1347 (Fed. Cir. 2021) (relying upon examples in FAR Part 14 to interpret terms in FAR 52.212-1(g)). In addition, the Part 15 definitions of “clarifications” and “discussions” may inform whether an agency has complied with fundamental fairness principles that apply under Subpart 8.4. See Centerra Grp., LLC v. United States, 138 Fed. Cl. 407, 413–14 (2018). The Court further notes that in addition to its citations to Part 15, and despite extensive briefing and argument, no party has argued that the above-referenced FAR Part 15 definitions are inapplicable here.

performance). A “[p]roposal modification is a change made to a proposal before

the solicitation closing date and time, or made in response to an amendment, or made to correct a

mistake at any time before award.” FAR 15.001. Any such “modification” triggers the late-islate rule. FAR 52.212-1(f)(2)(i).

CEC’s June 4 email containing the corrected quotation information is a “modification” of

its proposal because it was “a change . . . made to correct a mistake at any time before award.”

FAR 15.001. 8 Under the FAR, mistakes include “[a]pparent clerical mistakes.” FAR 14.407-2. 9 The FAR provides examples of clerical mistakes that include typographical errors in the

numbers included in an offer, such as the “[o]bvious misplacement of a decimal point” and an

“[o]bvious mistake in designation of unit.” Id. Here, the Court finds, as a matter of fact, that CEC

made a clerical mistake in its proposal because it appears to have failed to multiply numbers

correctly on one page and transposed two cells in a spreadsheet on another page. See Tab 14b, AR

367, 548. Indeed, Defendant and CEC each describe the mistake in CEC’s original quote as a

“clerical error.” Def. Reply at 14 (“It is obvious from the face of the proposal that there was a

clerical error.”); CEC Reply at 9 (“obvious clerical error/miscalculation”). The parties have not

presented any authority that would distinguish this “clerical error” from the “[a]pparent clerical

mistakes” set forth in FAR 14.407-2. See Def. Reply at 14; CEC Reply at 9. CEC’s email was a

“change . . . made to correct” CEC’s mistakes. FAR 15.001. The CO herself referenced CEC’s

Even if the FAR 15.001 definition did not apply, the plain meaning of “modification” includes small changes made to something, such as the changes made to CEC’s proposal. See Modification, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/modification (“the making of a limited change in something”).

FAR Part 15 references FAR 14.407 to define “mistakes,” so the examples in FAR 14.407-1 are relevant to the use of the word “mistake” in FAR 15.001. See FAR 15.306(b)(3)(i) (referencing FAR 14.407 to define “mistakes”).

June 4 email as “providing corrections” to CEC’s “calculation discrepancies.” Tab 24, AR 1176.

As such, the email from CEC to DEA constitutes a “modification” to which the late-is-late rule

plainly applies. See FAR 52.212-1(f)(2)(i).

Defendant and CEC argue that the late-is-late rule does not apply because the late-is-late

rule does not expressly use the term “clarification.” See Def. MJAR at 20; CEC MJAR at 44.

However, neither party establishes that a clarification email cannot also qualify as a modification

under the FAR. See Def. Reply at 8–9; CEC MJAR at 45. CEC contends that its email “was only

a clarification correcting a minor clerical error.” CEC MJAR at 45. As discussed above, a

modification is “a change . . . made to correct a mistake,” including a clerical mistake, so under

the FAR the clarification clearly was also a modification. See FAR 15.001; supra at n.8 (similar

dictionary definition). Defendant cites Klinge Corp. v. United States, 83 Fed. Cl. 773, 779 (2008),

for a purported distinction between clarifications and modifications. Def. Reply at 8–9. To the

extent that Klinge is persuasive, it supports the argument that CEC’s clarifications constituted

modifications. See Klinge, 83 Fed. Cl. at 778. Klinge distinguishes between a revision and a

clarification—the decision never states that a modification cannot also be a clarification. See id.

at 779. Separately, Klinge distinguishes between “modifications” and “explanations.” Id. There,

the “explanation” at issue did not change the offer to the agency but instead was a supplemental

piece of information to clarify an “ambiguity” in the offer. Id. at 778–79. The Klinge decision

held that the “explanation” was a “clarification” and not a “modification” because that particular

clarification did not modify the offer, but it does not state that a clarification can never be a

modification. See id. at 779–80. In contrast, CEC’s clarification here changed its quote through

the correction of obvious clerical errors, changing it so the clarification was more than just an

explanation. Compare Tab 14b, AR 367, 548 (each quoting price of $ for CLIN 0005),

with Tab 14c, AR 708, 716 (each quoting price of $ for CLIN 0005). Thus, under the

logic of Klinge, CEC’s change would also qualify as a modification. See Klinge, 83 Fed. Cl. at

778.

Defendant additionally fails to support its argument that a clarification cannot also be a

modification. Def. Reply at 8. Although not all clarifications are modifications, an email from an

offeror to an agency can constitute both a clarification and a modification. “Clarifications are

limited exchanges,” which include explanations of material within the proposal and “certain

changes” to proposals themselves. FAR 15.306(a)(1); Galen Med. Assocs., 369 F.3d at 1333.

Clarifications may be used to “resolve minor or clerical errors.” FAR 15.306(a)(2). The Court

of Federal Claims has routinely held that the use of clarifications includes “correcting mistakes.”

WaveLink, Inc. v. United States, 154 Fed. Cl. 245, 270 (2021); see, e.g., ENGlobal Gov’t Servs.,

159 Fed. Cl. at 765; Aspire Therapy, 166 Fed. Cl. at 378. Indeed, “a change made to a proposal

. . . made to correct a mistake at any time before award” is also a proposal modification. FAR

15.001. Thus, the correction of a mistake in a proposal made in response to an agency’s request

for clarification, before award of a contract, is both a clarification and a modification. See FAR

15.001; FAR 15.306. Defendant’s argument improperly collapses the term “modification” to have

the same meaning as “revision” 10 within the late-is-late rule, which ignores the “canon . . . whereby

different terms are presumed to have different meanings.” States Roofing Corp. v. Winter, 587

F.3d 1364, 1370 (Fed. Cir. 2009); see also NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159

(Fed. Cir. 2004) (“An interpretation that gives meaning to all parts of the contract is to be preferred

over one that leaves a portion of the contract useless, inexplicable, void, or superfluous.”). As

A revision is specifically a communication from the offeror to the agency that follows discussions and negotiations in a FAR Part 15 procurement, which can “clarify and document understandings reached during negotiations.” FAR 15.307(b).

such, the finding that the DEA and CEC engaged in clarifications does not preclude the finding

that CEC’s June 4 email was a modification.

Finally, Defendant argues that the CO’s emailed instructions supersede the RFQ’s

incorporation of the late-is-late rule. Def. MJAR at 20. In her email to CEC soliciting

clarifications, the CO email instructs CEC to “reply to this email . . . no later than 1:30PM, ET,

today, June 4, 2025.” Tab 14c, AR 704. This email seems to set a deadline based on action by

CEC (“reply to this email”), rather than one based on the time that the CO receives the email. See

id. Defendant asserts that the late-is-late rule “does not apply to deadlines outside of the

solicitation like the one at issue here.” Def. MJAR at 20. None of the parties cite precedent

regarding a CO’s ability to supersede the late-is-late rule, expressly incorporated into an RFQ,

through an email requesting clarifications. See Pl. Reply at 10; Def. MJAR at 20.

Defendant’s argument fails; the late-is-late rule’s determination of lateness based on the

time that “an offer [is] received” still squarely applies to an email containing a “modification.”

FAR 52.212-1(f)(2)(i). In Competitive Innovations, the agency instructed an offeror via a

“communications letter” to submit a revised quote by 10:00 a.m. on a particular date. Competitive

Innovations, LLC v. United States, 177 Fed. Cl. 717, 723 (2025). The offeror sent the revised

quote at 12:48 p.m., more than two hours after the deadline. Id. The Court of Federal Claims held

that the solicitation at issue incorporated the same version of the late-is-late rule, from FAR

52.212-1, that is at issue in this case. Id. at 726. As the solicitation incorporated the late-is-late

rule, in Competitive Innovations the late-is-late rule’s strict requirements applied to the response

to the communications letter since the late-is-late rule applies to “any modifications.” Id. at 726

(quoting FAR 52.212-1(f)). The letter from the agency to the offeror supplied “the 10:00 AM

deadline” for the offeror to submit its modification, but the late-is-late rule determined the

consequences of lateness. Id. Though not binding, Competitive Innovations is persuasive. In this

case, the late-is-late rule incorporated into the RFQ similarly applies to “[a]ny modification.” FAR

52.212-1(f)(2)(i); see also Tab 11, AR 276, 317 (incorporating FAR 52.212-1). During the

competition covered by this strict rule, the CO set a clearly specified deadline: CEC had to reply

“not later than 1:30PM ET . . . in order for [its] quote to be considered.” Tab 14c, AR 704. Under

the approach set forth in Competitive Innovations, CEC’s response to the CO’s email was subject

to the deadline specified in the CO’s email (1:30 p.m.) and the late-is-late rule’s submission

requirements and strict lateness constricts. See Competitive Innovations, 177 Fed. Cl. at 726; Tab

11, AR 276, 317, Tab 14c, AR 704.

Further, permitting the CO’s email seeking clarifications to supersede the late-is-late rule’s

incorporation in the RFQ would violate the well-established rule that “[o]nce an agency places

requirements in the solicitation, the agency must ‘either follow them or amend the [solicitation] to

eliminate them.” Kropp Holdings, 176 Fed. Cl. at 530 (quoting CW Gov’t Travel, Inc. v. United

States, 154 Fed. Cl. 721, 732 (2021)). In Kropp Holdings, this rule applied and meant that the CO

could not change the standard set forth in the solicitation for determining when a proposal was

late-received. 11 Id. at 531–32. In that case, “the RFP clearly state[d] that the ‘submission inbox’

time stamp controls for purposes of assessing timeliness of offers.” Id. at 531. The CO determined

that an email was timely received based on the time of another time stamp—the time of the email’s

first contact with a government server—even though the email was received late according to the

submission inbox time stamp. Id. at 531–32. This impromptu change to the method of determining

A CO’s emailed instructions for clarifications can set requirements determining lateness when a solicitation does not incorporate the late-is-late rule or any other rule that determines lateness. See Insight Pub. Sector, 161 Fed. Cl. at 806 & n.25.

an email’s timeliness violated the terms of the RFP because it was “a significantly different basis

in evaluating the proposals than was disclosed [in the RFP].” Id. at 532 (quoting G4S Secure

Integration LLC v. United States, 161 Fed. Cl. 387, 410 (2022)). Applied here, the same standard

means that the CO did not have the power to change the terms of the RFQ, which considered a

proposal timely or late based on the time it was “received.” See id.; FAR 52.212-1(f)(2)(i); Tab

11, AR 276 (incorporating FAR 52.212-1 into RFQ). As such, the late-is-late rule applies to CEC’s

June 4 response to the clarifications email.

2. Violation of the Late-is-Late Rule

FYI argues that DEA’s consideration of CEC’s modification violates the late-is-late rule

“under a straightforward application” of the rule. Pl. MJAR at 20. Defendant disagrees and argues

that the “relevant delivery location” is not the CO’s inbox, but instead the DOJ Proofpoint server,

making the email submission timely. Def. Reply at 10. CEC similarly argues that there was no

violation of the late-is-late rule because the Proofpoint server “received” its email before the 1:30

p.m. deadline. CEC Reply at 5.

The Court turns to the statutory text to resolve the dispute and accordingly holds that DEA

could not consider CEC’s June 4 modification because it was “received at the Government office

designated in the solicitation after the exact time specified.” FAR 52.212-1(f)(2)(i). The relevant

“Government office” was the CO’s inbox because the RFQ specified her email address as the

“LOCATION” for quote submission. Tab 11, AR 282; see Tab 14c, AR 704. 12 The CO’s email

The CO’s clarifications email departs from the RFQ in its definition of the relevant inbox. Compare Tab 11, AR 282, with Tab 14c, AR 704. The RFQ instructs quoters to submit quotes to the CO’s email “and” another DEA employee’s email inbox. Tab 11, AR 282. The CO’s clarifications email, in contrast, only requires a “reply” to her own email inbox. Tab 14c, AR 704. Plaintiff does not contend, however, that CEC must have also sent its modification to the other DEA employee’s email inbox specified in the RFQ, and the Court need not resolve the issue to

requesting clarifications from CEC specified “not later than 1:30PM, ET” as the time by which the

reply must be received in her inbox on June 4. Tab 14c, AR 704. The record reveals that CEC’s

email was received in the CO’s inbox at “1:44:30 PM,” which is later than 1:30 p.m. See Tab 14c,

AR 705. The Court has allowed Defendant to supplement the record with evidence explaining

why CEC’s email arrived in the CO’s inbox after the 1:30 p.m. deadline. See ECF No. 47 at 1.

That evidence reflects that CEC’s “email reached [the CO’s] inbox at 1:44pm.” Tab 55b, AR

2581. 13 As CEC’s “modification” was “received at the Government office designated in the

solicitation after the exact time specified,” the modification was late. FAR 52.212-1(f)(2)(i).

Accordingly, DEA unlawfully considered the modified proposal that CEC submitted when making

its award decision. Tab 19, AR 1152 (Business Evaluation Committee’s consideration of CEC’s

post-modifications total price), Tab 24, AR 1176 (CO’s consideration of “corrections”). In sum,

DEA is bound to the rule that the late modifications should “not be considered,” and DEA’s

consideration of the modification when making its award decision here violated the FAR’s late-islate rule. See FAR 52.212-1(f)(2)(i).

At oral argument, Defendant asserted that CEC’s email’s arrival in the Proofpoint security

filter (before the 1:30 p.m. deadline) could satisfy the late-is-late rule, in which case the Proofpoint

security filter would qualify as the “Government office designated in the solicitation.” OA Tr. at

66:3–7; FAR 52.212-1(f)(2)(i). To the contrary, as other judges the Court of Federal Claims have

decide this case. See Pl. MJAR at 18.

Defendant also submitted an affidavit from a DOJ official stating that while CEC’s email was stuck in Proofpoint, CEC’s “mail servers automatically attempted to re-send,” the first of which was the email containing CEC’s modified quotation. Tab 56, AR 2584–85. Logs included in the affidavit demonstrate that the re-sent email that passed through Proofpoint did pass through the Proofpoint server until 1:43:52 p.m., after the 1:30 p.m. deadline. Tab 14c, AR 704 (setting 1:30 p.m. deadline), Tab 56, AR 2585 (email passed Proofpoint server at 1:43:52 p.m.).

held, the “Government office” at issue in the late-is-late rule is the specific email inbox named in

the solicitation or RFQ, not an agency email server more broadly, and that an email must reach the

prescribed inbox by the deadline to be timely. See, e.g., Rick Aviation, 182 Fed. Cl. at 67;

Watterson Constr. Co. v. United States, 98 Fed. Cl. 84, 93 (2011). 14 The language of the late-islate rule compels this result. See FAR 52.212-1(f)(2)(i). When different terms appear “in the

alternative in the same statutory provision, it is reasonable to assume that the words have different

meanings.” Walton v. United States, 551 F.3d 1367, 1370 (Fed. Cir. 2009). The late-is-late rule

uses the term “Government office” alongside the term “initial point of entry to the Government

infrastructure.” See FAR 52.212-1(f)(2)(i). Thus, “Government office” and “initial point of entry

to the Government infrastructure” have different meanings. See Walton, 551 F.3d at 1370. In this

situation, the Proofpoint server is the “initial point of entry to the Government infrastructure”

because it is the first government server that CEC’s email reached. Tab 56, AR 2586. In contrast,

only the email addresses of the CO and another DEA official can qualify as a “Government office

designated in the solicitation,” because those are the only locations for submission mentioned in

the RFQ. See Tab 11, AR 282. The RFQ never mentions Proofpoint, so the Proofpoint server is

not “designated in the solicitation.” See Tab 11, AR 222–347; FAR 52.212-1(f)(2)(i). Instead, the

RFQ designated the CO’s email inbox as the Government office where offers must be received.

Tab 11, AR 282 (designating the CO’s email address as the “LOCATION” for quote submissions).

Defendant cites Watterson for the proposition that “the Government’s email servers,” rather than the particular CO’s email address listed in a solicitation, qualify as the “Government office designated in the Solicitation.” Def. MJAR at 30–31 (citing Watterson, 98 Fed. Cl. at 93). Defendant misreads Watterson, in which another judge of the Court of Federal Claims “determined that the ‘Government office designated in the solicitation,’ . . . was the CO’s email address.” Watterson, 98 Fed. Cl. at 93.

The term “Government office designated in the solicitation” must have an independent

meaning; here the term clearly references the CO’s email inbox that is specified in the RFQ. See

Walton, 551 F.3d at 1370; Tab 11, AR 282.

3. The Government Control Exception is Inapplicable

There is a notable exception to the late-is-late rule called the “government control

exception,” which allows a CO to excuse a late-received modification if “[t]here is acceptable

evidence to establish that it was received at the Government installation designated for receipt

of offers and was under the Government’s control prior to the time set for receipt of offers,” and

other requirements are met. See FAR 52.212-1(f)(2)(i)(B); see also eSimplicity, 162 Fed. Cl. at

381–86 (discussing government control exception’s application to emails). However, at oral

argument and in its briefs, Defendant disclaimed the exception, clearly and unequivocally stating

that it does not seek to invoke the government control exception to the late-is-late rule. OA Tr. at

65:20–22 (“[W]e aren’t arguing that the ‘government control’ exception is met here.”); see also

Def. Reply at 8 (“The Court need not weigh in on questions about . . . Government control.”).

Although CEC argued in its MJAR that the government control exception to the late-is-late rule

applies, see CEC MJAR at 43, CEC appears to have withdrawn that argument during the oral

argument by adopting Defendant’s statements, OA Tr. at 71:5–6 (“We concur with everything that

the Government has argued today.”). To the extent that CEC did not intend to withdraw its

argument about the government control exception (and to the extent CEC even has the ability to

assert such an exception in the face of the Government’s disavowal), it is evident that the

government control exception does not apply here.

The government control exception excuses lateness if “[t]here is acceptable evidence to

establish that [the modification] was received at the Government installation designated for receipt

of offers and was under the Government’s control prior to the time set for receipt of offers” and

“the Contracting Officer determines that accepting the late offer would not unduly delay

the acquisition.” FAR 52.212-1(f)(2)(i). Neither Defendant nor CEC identifies any document in

the record in which the CO determines that accepting CEC’s late modification would not unduly

delay the acquisition. See Def. Reply at 8; CEC Reply at 8. Nor could they, as such a

determination is absent from the record. Indeed, at oral argument, Defendant confirmed that “[t]he

CO did not” make a determination, which is a required precondition to the application of the

government control exception. OA Tr. at 65:19; see OA Tr. at 65:20–22 (“[W]e aren’t arguing

that the ‘government control’ exception is met here.”). As the CO never made the required

determination, the government control exception to the late-is-late rule cannot apply. See FAR

52.212-1(f)(2)(i).

Although the Court recognizes that this might seem to be an unfair outcome for CEC, which

did not itself cause the late delivery of the email, the Court must apply the regulation as written

and cannot red pen policy judgments into the FAR. Indeed, it would be inappropriate for the Court

to engage in judicial engraftment of the regulations. Accordingly, despite CEC’s efforts to reply

on time, CEC’s June 4 clarifications email was tardy under the applicable regulation and

accordingly DEA’s consideration of CEC’s clarifications in its June 4 email violates the late-islate rule. See FAR 52.212-1(f)(2)(i) (late-received modification “will not be considered”).

4. Prejudice from Acceptance of Late Submission

Plaintiff must demonstrate prejudice to succeed in the bid protest. See DynCorp I, 10 F.4th

at 1308. A protestor establishes prejudice by showing “that there was a ‘substantial chance’ it

would have received the contract award but for” that error. Sys. Stud. & Simulation, 22 F.4th at

998 (quoting Bannum, 404 F.3d at 1353); see GovCIO, 177 Fed. Cl. at 593 (describing prejudice

standard as a “low bar”). For the reasons stated below, Plaintiff demonstrates that the violation of

the late-is-late rule was prejudicial.

FYI argues that DEA’s improper consideration of the clarifications prejudiced it because

if DEA had not considered the clarifications, “it would have disqualified CEC.” Pl. MJAR at 20.

FYI asserts that if CEC had been disqualified, “FYI would have received the award.” Id.

Defendant contends that the improper consideration did not prejudice FYI because CEC

“receiv[ed] no benefit from the DEA-caused delay.” Def. MJAR at 22. CEC argues that the

improper consideration of clarifications was not prejudicial because DEA could have waived

CEC’s “pricing miscalculation.” CEC MJAR at 46.

Plaintiff successfully establishes prejudice because, as a matter of fact, “there was a

‘substantial chance’ it would have received the contract award” if not for the improper

consideration of CEC’s untimely clarifications email. Sys. Stud. & Simulation, 22 F.4th at 998

(quoting Bannum, 404 F.3d at 1353). When an initial proposal is timely received and a secondary

submission violates the late-is-late rule, only the initial proposal can be considered. See, e.g.,

Centerra Sec. Servs. GmbH v. United States, 176 Fed. Cl. 219, 234 (2025). DEA initially

considered CEC’s initial proposal to be “[u]nacceptable” due to the miscalculations. Tab 17b, AR

1133. DEA likely would not have made an award to a quotation that it had deemed to be

“[u]nacceptable.” See id. Without the competition posed by CEC’s superior technical evaluation,

FYI would have been tied with other quoters who received “HIGH CONFIDENCE” for Factors

One and Two and “ACCEPTABLE” for Factor Three, and FYI quoted a lower price than the other

quoters in that group. See Tab 19, AR 1152 (pricing), Tab 24, AR 1177 (highest rated quotes). If

FYI had quoted the lowest price of the quoters receiving the same high rating, and the DEA had

not considered CEC’s tardy June 4 email modification, then FYI would have had a “substantial

chance” at winning the award; accordingly, FYI has demonstrated prejudice. Sys. Stud. &

Simulation, 22 F.4th at 998 (quoting Bannum, 404 F.3d at 1353).

Defendant’s argument against prejudice fails because, contrary to Defendant’s argument,

CEC received a benefit from the improper consideration of its late submission. Defendant argues

that CEC “receiv[ed] no benefit from the DEA-caused delay” because CEC sent its modification

before the 1:30 p.m. deadline. Def. MJAR at 22; see also Def. Reply at 13 (“[B]ecause C. Evans

sent its clarifications response well in advance of the deadline, it did not obtain the competitive

advantage the late-is-late rule seeks to prevent.”). To the contrary, CEC gained a competitive

advantage from the consideration of the late modification, as discussed above. The DEA rated

CEC’s initial proposal—which is all DEA could consider if it followed the late-is-late rule—as

“[u]nacceptable” due to the miscalculations. Tab 17b, AR 1133. After the modification, DEA

lauded CEC’s offer for “exceeding requirements.” Tab 24, AR 1189. This change in evaluation,

which favored CEC, was only possible because DEA failed to follow the late-is-late rule. It is of

no moment that DEA’s own technology appears to have caused the violation, rather than any

mistake made by CEC, because the late-is-late rule routinely applies in situations when an offeror

timely sends an email but an agency’s email software delays receipt. See, e.g., Rick Aviation, 182

Fed. Cl. at 61–62; Kropp Holdings, 176 Fed. Cl. at 532. The late-is-late rule plainly states that it

applies based on the moment that an offer is “received” and, as discussed above, contains no

applicable exception here for lateness caused by the government’s own errors. See FAR 52.212-1(f)(2)(i).

CEC’s argument against prejudice also fails. CEC argues that “the CO was well within

her discretion to waive the pricing miscalculation that was being corrected, such that FYI could

not have been prejudiced by DEA’s consideration of CEC’s corrected quotation.” CEC MJAR at

46. This statement is contradicted by the record before the Court, in which DEA assessed that

CEC’s original quote, before the clarification, was “[u]nacceptable.” Tab 17b, AR 1133. CEC

cites several cases in support of the proposition that the CO could have waived the obvious errors

in CEC’s original quotation. CEC MJAR at 46–47 (citing T Square Logistics Servs. Corp. v.

United States, 134 Fed. Cl. 550, 557 (2017), GovWave, LLC v. United States, 175 Fed. Cl. 564,

656 (2025), ManTech Advanced Sys. Int’l, Inc. v. United States, 141 Fed. Cl. 493, 508 (2019)).

However, whether the CO could have waived the errors is beside the point. Based on the record

before this Court, CEC cannot establish that the CO would have waived the errors because the CO,

as a matter of fact, decided to seek clarifications from CEC rather than waive the obvious

typographical errors. See Tab 14c, AR 704. Even if there was a marginal chance that the CO

would have waived an error that rendered a bid “[u]nacceptable,” Tab 17b, AR 1133, the Court

finds, as a matter of fact, that FYI has established that it had “greater than an insubstantial chance

of securing the contract” if DEA could not consider CEC’s modified quote, which is sufficient to

establish prejudice. See REV, LLC v. United States, 91 F.4th 1156, 1163 (Fed. Cir. 2024) (quoting

Info. Tech., 316 F.3d at 1319). As such, FYI has established that DEA committed a prejudicial

error when it considered CEC’s late-received modification email, so FYI has prevailed on the

merits of its protest. DynCorp I, 10 F.4th at 1308.

D. CEC’s Post-Clarifications Compliance with Competition Requirements

Even if DEA could have considered CEC’s post-clarifications quote, FYI argues that DEA

was not allowed to make an award to CEC. Pl. MJAR at 25. FYI argues that even after the

clarifications, “CEC’s revised quote still contains errors.” Id. FYI also argues that “[a] quote that

does not comply with the material terms of a solicitation cannot form the basis for award.” Id. at

minor irregularities in offers received.” FAR 52.212-1(g); see Tab 10, AR 135 (incorporating

FAR 52.212-1 into RFQ). An error in an RFQ is a “minor informality or irregularity” if it is an

“immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that

can be corrected or waived without being prejudicial to other bidders.” FAR 14.405; see Safeguard

Base Operations, 989 F.3d at 1347 (relying upon FAR 14.405 to define “informalities and minor

irregularities” in FAR 52.212-1(g)). A “defect or variation is immaterial when the effect on price,

quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the

supplies or services being acquired.” FAR 14.405. A “contracting officer [is] under no obligation

to provide written reasons” documenting or explaining the waiver of an immaterial solicitation

requirement. Oak Grove Techs., 116 F.4th at 1380; see DynCorp I, 10 F.4th at 1313 (“Generally,

contracting officers are not obligated by the APA to provide written explanations for their actions.”

(quotation omitted)).

The error in the post-clarification quotation is immaterial because it is a minor irregularity,

so DEA could properly waive it. See Oak Grove Techs., 116 F.4th at 1380. This calculation error

is immaterial because did not materially affect the “price” or “quantity” of services that CEC will

provide under the contract. FAR 14.405. Additionally, this calculation error will not affect the

quantity available under the contract because the post-modification chart includes the correct

quantity for each CLIN. See Tab 14c, AR 716. Further, the RFQ specifically names the elements

of the price quote that the quote must include, and the sum of all quantities required is not

mentioned: “[p]rice quote shall include a price for each and every CLIN, on an all or none basis,

multiplied by the estimated quantity per CLIN and sum of all CLINs per year in accordance with

the Schedule of Supplies.” Tab 11, AR 280. Here, CEC’s post-clarification chart correctly

represents the final value of the price per CLIN multiplied by the sum of all CLIN quantities for

the base year ($ )—the only mistake in the post-clarification chart concerns the sum

of the CLIN quantities in the base year (printed as 61,440 hours, rather than the correct sum of

63,360 hours). Tab 14c, AR 716. To the extent that CEC was even required to include the sum

of the quantities of hours provided for each CLIN in the base year, this was an immaterial error

because it did not “affect[] cost evaluation.” Centech Grp., 554 F.3d at 1038. In addition to being

immaterial, the miscalculation did not prejudice other offerors because the quantity of units quoted

in the post-clarification chart did not factor into the analysis in the Award Decision Memo, which

instead only looked at the unit price proposed for each CLIN. See Tab 24, AR 1185. That unit

price remained unchanged in CEC’s quote. Compare Tab 14b, AR 367, 548 (quoting unit price

of $ for CLIN 0005), with Tab 14c, AR 708, 716 (quoting unit price of $ for CLIN

0005). As the calculation error in CEC’s post-clarifications quotation was immaterial and did not

prejudice other bidders, it was a “minor irregularit[y]” that DEA could properly waive. FAR

52.212-1(g); see Oak Grove Techs., 116 F.4th at 1380.

II. Evaluation of Non-Price Factors

Although FYI ultimately succeeds on the merits based on DEA’s improper consideration

of CEC’s modified quotation, for completeness the Court also assesses FYI’s MJAR arguments

against DEA’s evaluation of non-price factors. Plaintiff raises three challenges to DEA’s

evaluation of non-price factors. Pl. MJAR at 7–9. First, for Factor 1, Plaintiff argues that the

benefits that DEA identified in CEC’s proposal as exceeding the RFQ’s requirements did not

deserve the praise they received. Id. at 7–8. Second, Plaintiff argues that DEA illogically failed

to give FYI more credit for Factor 2 because FYI, as the incumbent contractor, would have an

easier Phase-in. Id. at 8. Third, Plaintiff argues that DEA improperly negatively assessed its past

performance under Factor 3. Id. at 8–9. Fundamentally, each challenge amounts to FYI’s

expression of disagreement with DEA’s evaluation. However, this Court is not empowered to

overturn a contract award merely because a losing bidder disagrees with the agency’s evaluation.

Harmonia Holdings Grp., 999 F.3d at 1408. Rather, FYI bore the burden to identify irrational and

prejudicial action by DEA. See DynCorp I, 10 F.4th at 1308. As FYI has not identified any such

irrational action in Defendant’s evaluation of non-price factors, the Court declines to disturb this

evaluation.

A. Factor 1 (Technical Capability)

For Factor 1 (Technical Capability), DEA promised to “evaluate each Quoter’s technical

capability to accomplish or satisfy each of the tasks in the SOW.” Tab 11, AR 286. According to

the RFQ, DEA would specifically evaluate a quoter’s ability “to provide high-volume recruitment

and onboarding support under tight deadlines.” Tab 11, AR 287. In addition, DEA would evaluate

whether each quoter “demonstrates the understanding and ability to develop tools to monitor

performance and deliverables effectively.” Id.

1. Evaluation of CEC Technical Capability

FYI challenges DEA’s finding that two elements of CEC’s proposal “constitute[d]

discriminators over FYI.” Pl. MJAR at 26. Although FYI and CEC received identical adjectival

ratings, DEA noted two advantages for FYI in the Award Decision Memo: CEC “exceeded SOW

section 6.0(h) applicant inquiries of 200 per month by proven surge capability of 28,000 applicant

inquiries per month and offered capability for customized dashboards to track progress during the

transition phases exceeding the minimum requirements of the RFQ.” Tab 24, AR 1178. FYI

argues that it was irrational for DEA to recognize these two strengths. Pl. MJAR at 26. Defendant

contends that “these arguments amount to nothing more than disagreements with DEA’s

qualitative judgments, none of which are sufficient to disturb the award.” Def. MJAR at 28. CEC

asserts that it deserved the discriminators as a reward for “its incredibly detailed response to the

RFQ’s requirements.” CEC MJAR at 21.

DEA rationally found that it was an advantage for CEC to have surge capacity to process

applications beyond the RFQ’s requirements. The RFQ stated that the contractor must be able to

“[r]espond to applicant inquiries” at a rate of 200 per month. Tab 11, AR 266. The RFQ also

stated that the contractor had to “[r]eview applications,” although there was no stated metric for

required application reviews. Tab 11, AR 253. CEC’s bid stated that it had previously handled

contracts that “required 7,000 applicant reviews . . . a week to meet hiring surge requirements,”

and that the firm had exceeded that requirement. Tab 14b, AR 395. DEA identified this ability as

a discriminator: “[p]roven surge capability callout—7K applicant reviews a week required, vendor

carried out 42 weeks 322K applicant reviews exceeding req.” 16 Tab 18a, AR 1135. FYI argues

that it was irrational for DEA to identify CEC’s past performance with applicant reviews as a

discriminator when the RFQ only provided a specific metric for responses to applicant inquiries.

Pl. MJAR at 26. However, it was entirely rational for DEA to determine that a contractor that

could review a high volume of applications could provide the required support for the recruiting

and staffing requirements under the contract. See Tab 18a, AR 1135. DEA considered the surge

capability for reviews completed as part of a broader explanation that CEC’s “[s]urge capacity is

well established in this proposal and supporting experience.” Id. It was not unfair for DEA to

highlight an offeror’s capabilities to accomplish a required task in the RFQ, even though the RFQ

FYI also argues that DEA misunderstood CEC’s proposal because the Award Decision Memo cites the number of applicant reviews that CEC claims it can perform as evidence that CEC can exceed the number of applicant inquiries that CEC can respond to per month. Pl. MJAR at 26– 27; see Tab 24, AR 1178. However, the record reflects that DEA understood the distinction, notwithstanding this discrepancy, and that DEA identified the surge capacity for applicant reviews on its own as a positive factor in CEC’s favor. See Tab 18a, AR 1135.

did not require offerors to meet a metric for that particular task. See DigiFlight, Inc. v. United

States, 167 Fed. Cl. 158, 171–73 (2023) (DigiFlight II) (upholding agency’s assignment of a

strength for proposing to provide personnel not specified in solicitation).

Similarly, DEA was allowed to assign strengths for CEC’s assessed ability to exceed the

High Confidence rating. Neither the RFQ nor the FAR limits DEA’s evaluation to an offeror’s

ability to satisfy adjectival ratings. See Tab 11, AR 285; FAR 52.212-2(a). The Court of Federal

Claims has repeatedly upheld an agency’s assessment as rational when one offeror has more

strengths under an evaluation factor even if two offerors receive the same adjectival rating. See,

e.g., IT Enter. Sols. JV, LLC v. United States, 132 Fed. Cl. 158, 174 (2017) (“[T]he [agency] clearly

concluded that [awardee] had demonstrated a superior level of past performance confidence, even

if it was assigned the same adjectival rating as [protester].”); see also Insight Pub. Sector, 161 Fed.

Cl. at 796 (holding in Subpart 8.4 procurement that “proposals with the same adjectival rating are

not necessarily of equal quality” (quoting Sys. Application & Techs., Inc. v. United States, 100

Fed. Cl. 687, 719 (2011), aff’d, 691 F.3d 1374 (Fed. Cir. 2012))); AMES 1, LLC v. United States,

162 Fed. Cl. 1, 22 (2022) (“An agency’s review beyond the overall . . . adjectival ratings ensures

that the agency can ‘determine which proposal represents the best value for the government.’”

(quoting E.W. Bliss, 77 F.3d at 449)); IAP World Servs., Inc. v. United States, 152 Fed. Cl. 384,

409 (2021) (“Adjectival ratings by themselves are not determinative because ‘[p]roposals with the

same adjectival rating are not necessarily of equal quality.’” (quoting Metcalf Const. Co. v. United

States, 53 Fed. Cl. 617, 641 (2002))); Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 758

(2008) (“Looking beyond the adjectival ratings is necessary.”). Similarly, another judge on the

Court of Federal Claims has held that an agency can identify strengths that exceed the minimum

requirements set forth in the solicitation as differentiators for a Subpart 8.4 best value procurement.

See DigiFlight II, 167 Fed. Cl. at 171–73. While not binding, the Court finds DigiFlight II

persuasive. As such, DEA did not violate the RFQ when it assessed strengths beyond the adjectival

ratings. See id. As DEA was allowed to assess an evaluation exceeding adjectival ratings and

explained the reasoning that led to that evaluation, the Court will not impose its own judgment

concerning what is or is not an indicator of likely successful performance. See Ala. Aircraft Indus.,

586 F.3d at 1375–76.

DEA also rationally found that it was an advantage that CEC “offered capability for

customized dashboards to track project progress during the transition phases.” Tab 24, AR 1178.

FYI argues that this advantage is irrational because it “cannot be reconciled with the [source

selection authority’s] separate finding that FYI requires no transition-in period.” Pl. MJAR at 28.

FYI’s allegation of an unfair evaluation discrepancy between the advantages of CEC’s dashboards

and FYI’s lack of a Phase-in period cannot be found in the record, which never directly compares

the two. 17 Tab 24, AR 1178, 1180. Rather, the record reveals that the Award Decision Memo

identified each element (CEC’s dashboards and FYI’s lack of a Phase-in period) as a strength in a

review of each individual submission, not in a direct comparison of the CEC and FYI offers. See

id. DEA never said that it would directly compare aspects of quotes head-to-head; rather, the RFQ

states that each “quote will be evaluated against the evaluation factors in this RFQ.” Tab 11, AR

285. Similarly, the award justification never states that the value of the dashboards outweighed

the value of having no Phase-in period. See Tab 24, AR 1189. Instead, the Award Decision Memo

merely states that CEC’s dashboards “exceed[] the minimum requirements of the RFQ.” Tab 24,

To the extent that FYI challenges the agency’s weighing of different benefits provided by each quoter in the best value determination, the Court addresses that determination in a separate section. See infra Discussion III. Similarly, to the extent that FYI argues it deserved higher ratings under Factor 2 (Transition), the Court addresses that evaluation in a separate section. See infra Discussion II.B.

AR 1178. It is rational for an agency to determine that greater visualization and knowledge of its

own data will support operational efficiency, as DEA’s evaluation team determined regarding the

dashboards that CEC proposed. Tab 18a, AR 1135. The DEA, not this Court, is best situated to

determine what contractor solutions will best exceed expectations and support agency operations,

and this Court will not disturb DEA’s thoroughly explained technical evaluation. See Ala. Aircraft

Indus., 586 F.3d at 1375–76.

2. Evaluation of FYI Technical Capability

Although FYI received the highest adjectival confidence rating available (“High

Confidence”) for Factor 1, it now contends that DEA “withheld evaluation credit from aspects of

FYI’s quote that exceed requirements once the evaluators determined to assign FYI a High

Confidence rating.” Pl. MJAR at 29. Defendant argues that DEA did all it was required to do, as

“DEA assessed each quotation against the RFQ’s stated criteria.” Def. MJAR at 32. CEC argues

that “FYI asks the Court to substitute its judgment for that of the Agency’s, which this Court will

not do.” CEC MJAR at 26. CEC also argues that FYI has not met the high bar to demonstrate

disparate evaluation. Id. The Court holds that DEA did not need to find that FYI’s proposal

exceeded minimum requirements and that DEA did not disparately evaluate the quotes.

FYI argues that DEA “failed to recognize additional ways in which FYI exceeded the stated

metrics,” but FYI never identifies any obligation for DEA to do so in the RFQ. See Pl. MJAR at

30. For example, FYI stated in its quotation that it had “responded to inquiries” in a threemonth period, but the Award Decision Memo did not identify this as an advantage. Tab 15b, AR

927, Tab 24, AR 1180. FYI argues that it was unfair for DEA to highlight CEC’s ability to exceed

requirements for this metric, but not to highlight FYI’s similar abilities. Pl. MJAR at 30. However,

the RFQ did not obligate DEA to identify ways that an offeror exceeded stated metrics; instead,

the RFQ stated only that each “quote will be evaluated against the evaluation factors in this RFQ.”

Tab 11, AR 285. An agency has discretion not to assign strengths beyond adjectival ratings where

it has considered the information before it. See DigiFlight II, 167 Fed. Cl. at 164–65. DEA

performed the required evaluation and gave FYI a “High Confidence” rating for Factor 1, the

highest score that was available under the RFQ. Tab 24, AR 1174, 1177. The record reveals that

this evaluation was based on an individualized assessment of the information that FYI provided in

its quote. See Tab 24, AR 1180. Beyond that determination, the Court cannot determine as a

matter of law which technical ratings may have been notable enough to exceed expectations, and

thus cannot determine that DEA acted irrationally in not stating that FYI’s proposal exceeded

expectations. See Harmonia Holdings Grp., 999 F.3d at 1408 (“Our role in reviewing procurement

decisions, however, is not to evaluate the offerors’ proposals anew or to substitute our judgment

for that of the agency.”). Similarly, DEA is better equipped than the Court to determine whether

responding to inquiries in three months is as valuable to DEA as reviewing 7,000 applications

in a week. See E.W. Bliss, 77 F.3d at 449 (“[T]echnical ratings . . . involve discretionary

determinations of procurement officials that a court will not second guess.”).

While this Court can review whether DEA disparately evaluated offers, FYI has not met

the exacting standard to prove a disparate evaluation here. To establish a disparate evaluation, “a

protestor must show that the agency unreasonably downgraded its proposal for deficiencies that

were ‘substantively indistinguishable’ or nearly identical from those contained in other proposals.”

Off. Design Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020). Here, FYI and CEC’s

proposals were not “substantively indistinguishable.” See id. FYI complains that DEA

specifically credited CEC, but not FYI, for mentioning DEAHire, a program that DEA uses for

recruitment. Pl. MJAR at 30–31. However, FYI cannot demonstrate that its explanation of

DEAHire in its approach was “substantively indistinguishable” from CEC’s explanation in its own

quotation. See Off. Design Grp., 951 F.3d at 1372. DEA credited CEC for its “[s]pecific mention

of DEAHire.” Tab 18a, AR 1135. CEC did, in fact, specifically mention DEAHire in a sentence

of the quotation: “we are well-positioned to quickly learn and adapt to DEAHire.” Tab 14b, AR

375. In contrast, FYI does not specifically focus on DEAHire, but instead simply lists DEAHire

as one of many platforms that its employees have worked with: “We have provided DEA with HR

professionals who are experts and work with a high degree of accuracy in the suite of federal HR

systems used by DEA to include: USA Staffing, DEA Hire, NFC, EmpowHR, and e-OPF.” Tab

15b, AR 918. An entire sentence about CEC’s commitment to DEA Hire is not “substantively

indistinguishable” from FYI’s unadorned mention of DEA Hire in a list of five programs, so FYI’s

disparate evaluation claim cannot succeed. Off. Design Grp., 951 F.3d at 1372; AccelGov, LLC v.

United States, 164 Fed. Cl. 345, 363 (2023) (finding that proposals to use a service desk hotline

were “not substantively indistinguishable” when explanations of proposed hotlines differed).

In addition, FYI argues that its proposed personnel were equally or more qualified than

CEC’s, but that DEA only commented on the quality of CEC’s proposed staff. Pl. MJAR at 31.

However, the proposed staff are composed of different individuals with different experiences, and

“two different management teams, one made up of entirely different individuals than the other, . . .

cannot be substantively indistinguishable.” Steel Point Sols., LLC v. United States, 180 Fed. Cl.

463, 475 (2026); see Golden IT, LLC v. United States, 177 Fed. Cl. 118, 145 (2025) (“[N]amed

key personnel are inherently different—they’re specific people after all—and resumes are by their

nature very rarely ‘substantively indistinguishable’ from each other.”). For example, CEC’s

proposed program manager has “ years of experience leading high-impact, cross-functional

initiatives,” while FYI’s proposed program manager has “ years of HR experience,” but

only years of experience in leadership roles. Tab 14b, AR 407, Tab 15b, AR 961. These

resumes are “substantively different” because one proposed person reports less experience overall

but more experience in a leadership role. See Steel Point, 180 Fed. Cl. at 475. As the proposed

key personnel are not “substantively indistinguishable,” FYI cannot demonstrate that its key

personnel were disparately evaluated. See Off. Design Grp., 951 F.3d at 1372.

B. Factor 2 (Transition)

FYI argues that DEA wrongly assessed FYI and CEC the same adjectival rating for Factor

2 and argues that DEA disparately evaluated the two offers. Pl. MJAR at 31 (“The record confirms

that the Agency failed to distinguish FYI and CEC under Factor 2 (Transition), in contravention

of the RFQ and procurement law, and then compounded its error by treating CEC and FYI

unequally.”). Defendant argues, to the contrary, that FYI misreads the evaluation criteria and

ignores substantive differences in the transition plans. Def. MJAR at 37–38. CEC argues that

DEA followed the RFQ’s requirements and that the proposals were not disparately evaluated under

Factor 2. CEC MJAR at 29–30.

1. Similar Evaluation of Transition

FYI and CEC each received a “HIGH CONFIDENCE” rating for Factor 2, the highest

rating available in the evaluation. TAB 24, AR 1174, 1177. FYI, though, argues that it was entitled

to a higher rating because, as the incumbent contractor, “FYI provided considerable advantages

relative to the stated criteria.” Pl. MJAR at 33 (“Beyond its obvious staffing advantage, FYI

emphasized other aspects of its transition that would further diminish risk, including FYI’s

familiarity and preexisting relationships with DEA stakeholders.”). FYI argues that the terms of

the RFQ required DEA to grant a higher score to offerors who exceeded minimum requirements.

Id. at 34.

However, Plaintiff’s cited authorities undermine its argument: the authorities to which FYI

cites reveal that the RFQ did not require DEA to give extra credit for surpassing minimum

requirements in this procurement. See Pl. MJAR at 34. FYI cites the evaluation criteria in the

RFQ and the decision of the Government Accountability Office 18 (GAO) in the matter of emissary

LLC, B-422388 et al., 2025 CPD ¶ 177 (Comp. Gen. July 29, 2025). Id. To the extent that emissary

is persuasive, it stands for the proposition that “[w]here a solicitation indicates that the agency will

evaluate the ‘extent’ a proposal meets a particular requirement, offerors can reasonably expect that

a proposal exceeding the agency’s minimum requirements will garner a more favorable evaluation

than one that merely meets the requirements.” emissary, 2025 CPD ¶ 177, at 6. There, solicitation

language stated that the agency would evaluate Phase-in proposals for “the extent to which the

Offeror’s plan is determined to demonstrate detailed methods the Offeror will implement to

become fully functional.” Id. at 6. The solicitation did not limit the agency to an evaluation of

Phase-in plans on “a pass/fail basis where it considered nothing more than the adequacy of the

offerors’ plans,” so the agency had to consider the incumbent contractor’s ability to exceed

minimum standards for the phase-in. Id. at 7.

In contrast, in the procurement at issue, the RFQ explicitly limits the evaluation of Factor

2 to “the degree to which the proposed approach meets or does not meet the minimum

performance or capability requirements.” Tab 11, AR 286 (emphasis added). The key words here

are “meet[]” and “minimum”—the adjectival ratings in this procurement do not reflect anything

more than an ability to “meet the minimum performance or capability requirements.” Id.

Proposing other solutions that could allow an offeror to exceed minimum requirements for Phase18

While GAO decisions can be persuasive, they are not binding on this Court. See SH Synergy, LLC v. United States, 165 Fed. Cl. 745, 768 n.24 (2023).

in would not lead to an advantage in adjectival scores. Tab 11, AR 234 (“[P]reference is not given

to vendors proposing incumbent staff.”). Unlike the agency in emissary, DEA told offerors that it

would assign adjectival ratings to transition plans on what amounts to a “pass/fail basis.” emissary,

2025 CPD ¶ 177, at 7; see Tab 11, AR 286. As DEA stated that the rating assigned for Factor 2

would only reflect the ability to meet minimum requirements, DEA did not act irrationally or

violate the terms of the RFQ when it assigned FYI and CEC the same high score because each of

their proposals met requirements, even if FYI’s incumbency was a natural advantage. See Tab 11,

AR 286 (defining adjectival ratings as ability to “meet . . . minimum performance or capability

requirements”), Tab 24, AR 1177 (assigning “HIGH CONFIDENCE” scores under Factor 2 to

FYI and CEC). In addition, FYI’s incumbent status did not entitle it to assessment of exceeding

standards beyond the adjectival ratings. See DigiFlight II, 167 Fed. Cl. at 165 (“[Plaintiff] does

not sufficiently establish that an offeror’s incumbency status should always be treated as uniquely

important.”); Integrated Fin. & Acct. Sols., 161 Fed. Cl. at 492 (“[Agency] may not award

[Plaintiff] strengths due to its incumbent status because the RFQ does not disclose any advantage

related to incumbency.”).

2. Disparate Evaluation of Transition

FYI argues that DEA engaged in a disparate evaluation of Factor 2 by “lauding attributes

of CEC’s approach while ignoring virtually the same (or superior) attributes in FYI’s approach.”

Pl. MJAR at 34. As with the evaluation of Factor 1, FYI cannot establish that its proposal was

“substantively indistinguishable” from CEC’s, so FYI cannot meet the elements for a disparate

evaluation claim. See Off. Design Grp., 951 F.3d at 1372.

FYI first argues that DEA’s evaluation credits CEC for stating that its “first priority is to

retain high performing incumbent personnel with organizational knowledge” but does not credit

FYI for allegedly similar statements. Pl. MJAR at 35; Tab 14b, AR 401. However, the plans

outlined by each offeror are not “substantively indistinguishable,” even if FYI identifies some

similar words. Off. Design Grp., 951 F.3d at 1372. CEC’s proposal states that its “first priority is

to retain high performing incumbent personnel with organizational knowledge” and then continues

with a description of how CEC will contact and recruit potential personnel:

We will reach out to incumbent personnel immediately, holding

to ensure clear and immediate communication with all

personnel and defuse any concerns or misinformation. Next, our PM will

coordinate with HR to

. Team CEC will leverage our accelerated

onboarding and training [including

, etc.] to ensure that all staff are oriented

and prepared to perform effectively on Day One of contract performance.

Tab 14b, AR 401. In contrast, FYI writes that it would “[i]dentify and recruit high performing

incumbent personnel” but does not specify in any greater detail how it would recruit the personnel.

Tab 15b, AR 945. The several extra sentences of detail in CEC’s proposal distinguishes the offers.

See Tab 14b, AR 401. As the offerors included different levels of detail, their quotations are not

“substantively indistinguishable.” See Off. Design Grp., 951 F.3d at 1372; Steel Point, 180 Fed.

Cl. at 474 (finding offers not substantively indistinguishable when one offer “incorporates more

detailed discussion of its use of” management approaches); AccelGov, LLC, 164 Fed. Cl. at 363.

It is within DEA’s competence, not the Court’s, to say whether the more specific explanation of

recruitment provides a benefit to the agency, and the Court defers to DEA’s rational explanation

of its evaluation. See Harmonia Holdings Grp., 999 F.3d at 1408; Tab 18a, AR 1136–37 (TEP

Factor 2 evaluation of CEC), Tab 18b, AR 1141 (TEP Factor 2 evaluation of FYI).

Next, FYI argues that DEA performed a disparate evaluation when it credited “CEC only

for accounting for incumbent personnel and full assumption of responsibility by transition day 30,”

whereas FYI received no credit for promising to assume responsibility by the first day. Pl. MJAR

at 35–36. Evaluating the record, it is clear that DEA noted the distinction between the proposals

and credited FYI with the advantage of being able to assume responsibility on the first day. Tab

18b, AR 1141. Regarding FYI’s ability to phase-in immediately as the incumbent, the Technical

Evaluation Panel took that into account, writing that DEA “can leverage transition window

yielding improvements to DEA.” Id. The Award Decision Memo highlighted the same advantage

of FYI’s proposal: “as the incumbent, there is no requirement for a transition period.” Tab 24, AR

1180. In contrast, considering CEC’s promise to assume responsibility by day 30 of the phase-in

period, the Technical Evaluation wrote “RFQ requirements met and all components addressed.”

Tab 18a, AR 1136. In these statements, DEA appears to have recognized the likely Phase-in

advantage provided by FYI’s status as the incumbent contractor. See id. Plaintiff cannot show

DEA “unreasonably downgraded its proposal for deficiencies that were ‘substantively

indistinguishable’ or nearly identical from those contained in other proposals” regarding the time

needed for transition because the proposals were different and DEA recognized the strength of the

reduced Phase-in window. See Off. Design Grp., 951 F.3d at 1372; Tab 24, AR 1180.

Finally, FYI claims that another one-sentence snippet of the Technical Evaluation Panel’s

assessment evinces a disparate evaluation. FYI argues that DEA credited CEC for designating a

“specific key member . . [.] to handle the transition plan” but failed to credit FYI for a similar

commitment. Pl. MJAR at 36 (quoting Tab 18a, AR 1136). Here, again, FYI and CEC proposed

plans that were not “substantively indistinguishable,” so Plaintiff cannot establish a claim of

disparate evaluation. Off. Design Grp., 951 F.3d at 1372. DEA did not just credit CEC for having

a designated supervisor for the transition but wrote specifically that the inclusion of a “

” was a “novel approach to handling this.” Tab 18a, AR 1136. CEC’s description

of the included the following details:

; descriptions of the roles of each team; a

commitment to ; the aforementioned customized dashboards;

and a (beginning before the Phase-in period) for nine

separate Phase-in milestones. Tab 14b, AR 399–400. FYI’s identification of

as someone who will provide “leadership during transition and throughout

delivery” is simply not “identical” to CEC’s proposal, despite FYI’s arguments, because it

provides a different solution. See Pl. MJAR at 36 (quoting Tab 15b, AR 944). Unlike CEC’s

quotation, FYI does not propose making “leadership during transition” the focus of any

employee’s work; FYI’s quotation instead states that its will “support[]” the

Phase-in process. Compare Pl. MJAR at 36 (quoting Tab 15b, AR 944) (“leadership”), with Tab

15b, AR 946 (“support[]”). As these descriptions of leadership and staffing reflect different

commitments to Phase-in plans during the Phase-in period and thus are not “substantively

indistinguishable,” DEA did not disparately evaluate the proposals. See Off. Design Grp., 951

F.3d at 1372.

C. Factor 3 (Past Performance)

FYI argues that DEA also unreasonably evaluated Factor 3 (Past Performance). Pl. MJAR

at 37. FYI and CEC each received an “ACCEPTABLE” rating for Factor 3, the highest adjectival

rating available. Tab 24, AR 1174, 1177. FYI argues that although it received the highest rating

available, “the record contains several evaluator criticisms of FYI that diminished FYI’s relative

competitive standing.” Pl. MJAR at 37. FYI argues that these criticisms are contradicted by the

record and that it was irrational for DEA not to consider the most recent report on FYI’s incumbent

contract in the Contractor Performance Assessment Reporting System (CPARS). Id. at 37–38.

Defendant responds that DEA rationally evaluated the past performance information and was not

required to consider the most recent Contractor Performance Assessment Report (CPAR). Def.

MJAR at 40–41. CEC argues that DEA did not err in its evaluation of FYI’s past performance and

that any error would not have been prejudicial. CEC MJAR at 31–36.

FYI faces a high bar to demonstrate that the past performance evaluation was irrational.

“Agency past performance evaluations are entitled to ‘the greatest deference possible.’” Garrett

Elecs., Inc. v. United States, 163 Fed. Cl. 632, 666 (2023) (quoting Alisud-Gesac Handling –

Servisair 2 Scarl v. United States, 161 Fed. Cl. 655, 668 (2022)); see also Glenn Def. Marine

(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 909–10 (Fed. Cir. 2013) (agencies have “broad

discretion” to measure and evaluate an offeror’s past performance). An agency’s evaluation of an

offeror’s past performance “often requires the special expertise of procurement officials, and thus

reviewing courts give the greatest deference possible to [such] determinations.” Beta Analytics

Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2005); see also E.W. Bliss, 77 F.3d at 449 (courts

should not second guess “discretionary determinations of procurement officials” that “deal with

the minutiae of the procurement process in such matters as technical ratings”). A court’s review

of an agency’s past performance evaluation should thus be limited to ensuring the evaluation was

reasonable and consistent with the stated evaluation criteria. See Am. Auto Logistics, LP v. United

States, 117 Fed. Cl. 137, 185–86 (2014). “This Court will not upset the agency’s rating simply

because plaintiff was the incumbent and believes its experience to be superior.” Bowhead Enter.,

Sci. and Tech., LLC v. United States, 179 Fed. Cl. 1, 20 (2025) (cleaned up) (quoting United

Concordia Cos. v. United States, 99 Fed. Cl. 34, 45 (2011)).

1. Evaluation of FYI’s Performance as Incumbent

FYI offers three reasons why DEA’s evaluation of FYI under Factor 3 was unreasonable.

Pl. MJAR at 37–38. First, FYI argues that the Technical Evaluation Panel unreasonably stated

that FYI’s CPARs “do not reflect the same scope as the instant effort.” Id. at 37. Second, FYI

argues that the Technical Evaluation Panel’s statement that “[t]here have been issues”

with irrationally conflicts with information in the record. Id. at 37–38. Third, FYI

argues that it was unreasonable for DEA not to consider its most recent CPAR. Id. at 38. For the

reasons explained below, each argument fails.

DEA rationally justified its statement that “[t]he CPARs provided do not appear to be at a

similar scale/scope as our requirement; task areas do not align.” Tab 18b, AR 1142. As Plaintiff

itself acknowledges, DEA could not locate FYI’s CPAR for the incumbent contract. Pl. MJAR at

38; Tab 42, AR 2462–63. FYI does not offer any evidence, or even argue, that the other CPARs

DEA considered were for projects of a similar scale or scope. See Pl. MJAR at 37. In addition,

even if DEA accessed the CPAR for the incumbent contract, changes between the incumbent

contract and the RFQ, which FYI acknowledges exist, may have made the new contract different

in scope. Tab 18b, AR 1142. DEA’s evaluators found that FYI acknowledged the increased scope

because FYI’s quotation required “adding some ” compared to the incumbent

contract. Id. FYI does not identify any evidence that proves that the addition of the

could not render the new DEA contract different in scope, and “[d]eterminations regarding

the degree of similarity between past performance examples and the contract that is the focus of

the procurement are subjective and lie within the expertise of the Agency.” AAR Gov’t Servs., Inc.

v. United States, 180 Fed. Cl. 587, 604 (2026). As such, DEA’s evaluation rationally stated that

“[t]he CPARs provided do not appear to be at a similar scale/scope as our requirement.” Tab 18b,

AR 1142.

It was not inconsistent with the record for DEA’s evaluation to note that

Tab

18b, AR 1143. The evaluation attributed this statement to the “Government’s own

knowledge/experience.” Id. FYI argues that this evaluation is inconsistent with FYI’s CPAR

covering the period ending May 24, 2022 (which DEA did not consider), which states that “[t]he

vendor was

The .”

Tab 41, AR 2446; see Pl. MJAR at 37. There is no inconsistency between the evaluation and the

CPAR because there is no indication that they concern FYI’s performance during the same time

period. The evaluation is dated July 7, 2025, but the CPAR is for a period ending May 24, 2022—

the evaluation may have been based on more recent performance than that which the CPAR

evaluated. Compare Tab 18b, AR 1139, with Tab 41, AR 2445. In addition, the terms of the RFQ

allowed DEA to consider the evaluator’s experience and disregard the CPAR, as the RFQ states

that “[i]nformation from the Quoter will be considered as well as information obtained from other

sources, which may include . . . the Government’s own knowledge/experience, and/or . . .

CPARS.” Tab 10, AR 147 (emphasis added). Here, even if there was an inconsistency, that would

not mean DEA acted irrationally as the terms of the RFQ allowed DEA to credit one source of

information (its own experience) over another (the CPAR). Id.; see AAR Gov’t Servs., 180 Fed.

Cl. at 603 (“[T]o the extent a conflict existed, it was up to the Agency to decide which source to

credit.”).

Finally, DEA did not act unreasonably when it did not evaluate FYI’s most recent CPAR.

FYI argues that the “too close at hand” doctrine required DEA to consider the CPAR. Pl. MJAR

at 38. The too close at hand doctrine holds that “if a government agency possesses personal

knowledge or internal information pertaining to an offeror’s contract or prior work, the agency

may be obligated to consider that information even if the offeror did not cite the information in a

proposal.” ProSecure LLC v. United States, 151 Fed. Cl. 697, 707 (2020); see Integrated Fin. &

Acct. Sols., LLC v. United States, 161 Fed. Cl. 475, 490 (2022) (“Under the too close at hand

doctrine, there is certain information about past performance that if the agency is aware of, it

cannot ignore.”). Here, FYI cited its own experience in its proposal, and DEA considered that

experience (albeit not the exact piece of information FYI cited) in its evaluation. See Tab 18b,

1143 (citing “Government’s own knowledge / experience” of incumbent contract). This qualifies

as consideration of “personal knowledge or internal information” that satisfies the too close at hand

doctrine. See ProSecure, 151 Fed. Cl. at 707. The issue in this case resembles Bowhead, in which

a plaintiff invoked the too close at hand doctrine to challenge an agency’s choice not to consider

all the past performance reports of plaintiff’s subcontractor. Bowhead, 179 Fed. Cl. at 20–21.

There, as here, the solicitation used permissive language in defining the sources of information

that the agency could consider. Compare id. at 21, with Tab 10, AR 147. In Bowhead, it was

reasonable for the agency not to credit plaintiff for the past performance reports of plaintiff’s

subcontractor when the record established that the agency had, in fact, reviewed that past

performance and determined that it did not justify a higher assessment for plaintiff. Bowhead, 179

Fed. Cl. at 21 (“There is a stark difference, however, between an agency’s failure to consider

readily available information and an agency’s disputed appreciation of that data.” (emphasis in

original)). Here, similarly, DEA considered its own knowledge of FYI’s performance and merely

reached a different conclusion about that performance than FYI wished. Tab 18b, 1143. That

consideration satisfies DEA’s responsibility under the too close at hand doctrine. See Bowhead,

179 Fed. Cl. at 21.

2. Prejudice for Highest Rating

FYI cannot demonstrate that it was prejudiced when it received the highest past

performance rating available under the RFQ, or that the negative comments in its evaluation made

a difference in the final evaluation. The Court finds, as a matter of fact, that even if DEA’s

Technical Evaluation Panel erred in its past performance evaluation, the error would have not have

been prejudicial, so Plaintiff’s claim still would not succeed. See Sys. Stud. & Simulation, 22 F.4th

at 998 (Court of Federal Claims makes “factual findings underlying the prejudice determination.”).

FYI contends that critical statements in the evaluation were prejudicial because “[w]ith the

criticisms removed, the evaluators likely would view FYI as superior to CEC under Factor 3 and

FYI likely would have received the award.” Pl. MJAR at 39. The record contravenes FYI’s

argument for two reasons. First, the Award Decision Memo disregarded the critical comments

from the Technical Evaluation Panel concerning the scope of past performance and said that “FYI

demonstrated experience in providing human resource staffing of similar size, scope, and

complexity.” Tab 24, AR 1180. A statement in a Technical Evaluation Panel report is not

prejudicial if the relevant source selection authority (here, the CO) disregards that statement in the

final decision document (the Award Decision Memo). WellPoint Mil. Care, 953 F.3d at 1380

(“[W]e need not be concerned with errors in the interim reports . . . unless they were carried

forward to the [Source Selection Authority’s] final decision.”). Second, the Award Decision

Memo identifies CEC’s technical capabilities, such as the number of applicant inquiries and the

customized dashboards, and not CEC’s past performance as differentiating factors that allow CEC

to “exceed the DEA’s needs.” Tab 24, AR 1178. FYI presents no contrary evidence that the past

performance evaluation was prejudicial. See Pl. MJAR at 39 (citing no evidence in the AR for

prejudicial effect of past performance evaluation). Thus, the facts in the record indicate that even

if the Technical Evaluation Panel had not criticized FYI’s past performance, that change would

not have affected the outcome of the procurement, so FYI demonstrates no prejudice. See

WellPoint Mil. Care, 953 F.3d at 1377; Bannum, 404 F.3d at 1353–54. Thus, even if DEA had

irrationally evaluated Factor 3, Plaintiff would have failed to meet its burden, as a plaintiff must

demonstrate prejudice to overturn a procurement based on irrational decision-making by an

agency. See DynCorp I, 10 F.4th at 1308.

III. Best Value Determination

Although FYI has succeeded on the merits based on DEA’s improper consideration of

CEC’s modified quotation, for completeness the Court assesses FYI’s MJAR arguments against

the best value determination. Pl. MJAR at 39–43. “An agency’s award decision is ‘least

vulnerable to challenge when based upon a best value determination.’” Garrett Elecs., 163 Fed.

Cl. at 672 (quoting PlanetSpace Inc. v. United States, 96 Fed. Cl. 119, 125 (2010)); see Galen

Med. Assocs., 369 F.3d at 1330. “Procurement officials have substantial discretion to determine

which proposal represents the best value for the government.” E.W. Bliss, 77 F.3d at 449. In

particular, in a FAR Subpart 8.4 best value procurement, “the Agency is neither expected nor

required to document every decision it makes in rigorous detail.” Integrated Fin. & Acct. Sols.,

161 Fed. Cl. at 496. “Accordingly, this Court is to afford both leeway to the Agency’s

documentation of its action and even greater deference to the Agency in a best value procurement.”

Steel Point, 180 Fed. Cl. at 479.

FYI quoted a price of $9,240,633.60, while CEC quoted a price of $9,313,152.00; the

difference is $72,518.40, or 0.78% of CEC’s quoted price. Tab 19, AR 1152. FYI argues that

DEA’s best value determination is irrational because it does not adequately explain DEA’s

decision. 19 Pl. MJAR at 41. Defendant argues, to the contrary, that the “tradeoff analysis was

reasonable and within [DEA’s] discretion.” Def. MJAR at 44. Similarly, CEC contends that DEA

rationally explained its decision. CEC MJAR at 37.

The RFQ minimized the impact of price differences upon the best value determination in

this procurement:

All evaluation factors other than cost/price, when combined, are significantly more

important than cost or price. As technical differences narrow between quotes,

cost/price will become more important.

Tab 11, AR 288. The Contracting Officer wrote the following sentence under the heading “Award

Decision” in the Award Decision Memo:

The High Confidence Rating of [CEC’s] quote across all non-price factors along

with their exceeding requirements offsets the higher price of their quote when

compared to lower priced proposals which received equal or lower confidence level

ratings across the non-price factors.

Tab 24, AR 1189. FYI asserts that this explanation is insufficient because it does not adequately

explain the decision or “comparatively assess[] the quoters.” Pl. MJAR at 41. FYI compares this

sentence to the insufficient reasoning exhibited in a Subpart 8.4 procurement in DigiFlight, Inc. v.

United States, 165 Fed. Cl. 588 (2023) (DigiFlight I). Id. at 40–41.

FYI also contends that DEA’s “best value determination is arbitrary and capricious because it derives from an underlying evaluation which contains prejudicial errors.” Pl. MJAR at 40. However, as recounted above, the underlying evaluation did not contain prejudicial errors. See supra Discussion II. “As Plaintiff’s . . . argument that the best value analysis was flawed rests on the proposition that errors were made in the evaluation of technical factors, and it has not adequately demonstrated such errors, this claim fails.” Steel Point, 180 Fed. Cl. at 479.

DEA’s best value determination in this procurement does not bear the flaws seen in

DigiFlight I, in which the procuring agency fell “woefully short” of explaining its decision in a

because neither the technical evaluation nor the best value tradeoff justified award. See 165 Fed.

Cl. at 608. Crucially, the agency in DigiFlight I failed to justify its decision because the underlying

technical evaluation and the tradeoff analysis were each insufficient. Id. The technical evaluations

were “incredibly repetitive and completely conclusory,” as the agency provided substantively

identical technical evaluations for each offeror. Id. at 607–08. The tradeoff analysis was so sparse

that “the Court [could] neither tell what the evaluation methodology actually was for selecting the

awardee nor discern the rationale for the tradeoff analysis.” Id. at 608. Due to the sparse and

conclusory reasoning, the best value determination was irrational. Id. at 610.

The instant procurement does not contain the same lack of reasoning as seen in DigiFlight

I. See Tab 24, AR 1177–90. Whereas the technical evaluation in DigiFlight I provided nearly

identical five-sentence explanations of each offer, the Award Decision Memo in this case contains

a full paragraph of reasoning for each of 13 offerors, which references specific details of each

offer. Tab 24, 1178–82. For CEC, the Award Decision Memo reviews specific comments from

the technical evaluation, highlights the elements of CEC’s proposal that exceeded minimum

standards, and concludes that “DEA has high confidence that the quoter will not only meet but

exceed the DEA’s needs.” Tab 24, AR 1178. For FYI, the Award Decision Memo reviews specific

comments from the technical evaluation, notes that “there is no requirement for a transition period

due to FYI’s incumbent status,” and concludes that FYI “meet[s] the minimum requirement of the

RFQ.” Tab 24, AR 1180. The Award Decision Memo does not conclude that any offeror but CEC

would exceed requirements in its review of the technical evaluation. See Tab 24, 1178–82. The

one-sentence explanation of the best value tradeoff flows from this conclusion: CEC’s “exceeding

requirements offsets the higher price of their quote when compared to lower priced proposals.”

Tab 24, AR 1189. This reasoning is far more thorough than the insufficient reasoning in DigiFlight

I because DEA explains the individualized technical evaluation of each proposal, why CEC stands

out, and why DEA chose a higher-priced offer in CEC. See DigiFlight I, 165 Fed. Cl. at 608.

Thus, DigiFlight I does not guide the outcome in this case. See id.

Instead, the reasoning in this best value decision is closer to that seen in RELI Group, Inc.

v. United States, in which the Court of Federal Claims upheld an agency’s best value determination

in a Subpart 8.4 procurement. 174 Fed. Cl. 630, 640 (2025) (“The Agency conducted a proper

tradeoff, as shown in its final evaluation.”). There, as in this procurement, the agency promised to

make a best value tradeoff determination. Compare RELI Grp., 174 Fed. Cl. at 640, with Tab 11,

AR 288 (“Award will be based on the Best Value Trade-Off method.”). The procuring agency did

not directly compare the winning offer against other offers to document the tradeoff; rather, the

agency wrote a “comparison among all offerors,” which listed the strengths and weaknesses of

each offer compared to the evaluation criteria. RELI Grp., 174 Fed. Cl. at 640–41; see also CAN

Softtech, Inc. v. United States, No. 24-670, 2024 WL 4434253, at *24 (Fed. Cl. Oct. 4, 2024)

(upholding best value tradeoff under FAR Subpart 8.4 when CO “discussed the merits and

adjectival ratings of each proposal in isolation,” without direct comparison between offerors). The

tradeoff contained sufficient explanation because it “compar[ed] the advantages and disadvantages

of each of the eight offerors,” and then awarded to the most advantageous offer, which was not the

lowest-priced. RELI Grp., 174 Fed. Cl. at 641. Here, similarly, DEA identified the advantages

and disadvantages of each offer and named a single offer (CEC’s) which exceeded requirements.

See Tab 24, 1178–82. DEA then explained the reasoning behind its best value tradeoff when it

said that CEC’s “exceeding requirements offsets the higher price of their quote when compared to

lower priced proposals.” Tab 24, AR 1189. The explanation of the tradeoff in this procurement,

when combined with the detailed analysis of the technical evaluation earlier in the Award Decision

Memo, is sufficient to meet the more limited standards of Subpart 8.4, as “rigorous detail” is not

required. See Integrated Fin. & Acct. Sols., 161 Fed. Cl. at 496 (quoting 22nd Century Techs.,

Inc. v. United States, No. 21-1137, 2021 WL 3856038, at *10 (Fed. Cl. July 21, 2021)).

IV. Injunctive Relief

FYI argues that it is entitled to injunctive relief. Pl. MJAR at 44. FYI attached to its MJAR

a declaration from , its Director of Contracts Management, claiming that a loss of

this contract “will have a significant adverse impact on FYI’s business.” ECF No. 24-2 at 2 ¶ 5.

Defendant opposes injunctive relief and argues that even if DEA violated procurement law, “there

is no need for the Court to enjoin C. Evans from competition.” Def. MJAR at 47. CEC asserts

that if DEA’s consideration of its modification violated the late-is-late rule, then “the Court’s

injunction must be broad and allow the DEA to consider all options for re-award . . ., including reevaluation of all proposals as they are.” CEC Reply at 19.

In bid protest cases, the Tucker Act provides this Court with the power to enter “any relief

that the court considers proper, including declaratory and injunctive relief.” 28 U.S.C.

§ 1491(b)(2). The Court considers four factors when deciding whether to grant injunctive relief:

(1) whether the plaintiff has succeeded on the merits, (2) whether the plaintiff will suffer

irreparable harm if the court withholds injunctive relief, (3) whether the balance of hardships to

the respective parties favors granting an injunction, and (4) whether the public interest is served

by granting an injunction. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.

2009). As discussed above, FYI’s protest succeeds on the merits, as DEA violated the late-is-late

rule in its consideration of CEC’s modifications. Thus, this Court reviews the other three factors

to determine whether injunctive relief is appropriate.

A. Irreparable Harm

FYI has established that it will suffer irreparable harm if injunctive relief is withheld. “‘A

party suffers irreparable harm when there is no adequate remedy’ in the absence of an injunction.”

Cosette Pharms., Inc. v. United States, 179 Fed. Cl. 740, 762 (2025) (quoting Frawner Corp. v.

United States, 161 Fed. Cl. 420, 462 (2022)). “The Court of Federal Claims has repeatedly held

that a protester suffers irreparable harm if it is deprived of the opportunity to compete fairly for a

contract.” CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 494 (2013). When an agency

improperly makes award to another offeror, a protestor “is unable to compete for the award and

will potentially lose profits as a result.” Cosette Pharms., 179 Fed. Cl. at 762. FYI provides

uncontroverted evidence that the loss of this contract will

. ECF No. 24-2 at 2–3 ¶¶ 6–7. Thus, FYI has demonstrated that it will suffer irreparable harm.

B. Balance of Hardships

“The balance of hardships inquiry requires a ‘consideration of the harm to the

[G]overnment.’” Cosette Pharms., 179 Fed. Cl. at 762 (quoting Frawner Corp., 161 Fed. Cl. at

462). Defendant never argues that injunctive relief will present hardship to DEA. See Def. MJAR

at 47; Def. Reply at 30. FYI, the incumbent contractor, avers that it “is prepared to continue to

provide these services . . . during the pendency of any reevaluation or competition for the solicited

effort.” ECF No. 24-2 at 3 ¶ 9. In contrast, without an injunction, FYI would be deprived of the

opportunity to fairly compete for the award, because FYI has not had the opportunity to compete

under the rules that DEA promised to follow. Accordingly, the balance of hardships weighs in

favor of granting an injunction.

C. Public Interest

“It is axiomatic that ‘the public interest in honest, open, and fair competition in the

procurement process is compromised whenever an agency abuses its discretion in evaluating a

contractor’s bid.’” Cosette Pharms., 179 Fed. Cl. at 762 (quoting Overstreet Elec. Co. v. United

States, 47 Fed. Cl. 728, 744 (2000)). “An injunction preventing performance under an improperly

awarded contract will serve the public interest by preserving that honest, open, and fair process.”

Id. (citing Frawner Corp., 161 Fed. Cl. at 420). Defendant makes no argument concerning any

harm that an injunction poses to the public interest. See Def. MJAR at 47; Def. Reply at 30.

Accordingly, the public interest weighs in favor of an injunction, so that the procurement may

proceed in accordance with law.

D. Scope of Injunction

As all four factors weigh in Plaintiff’s favor, the Court finds the entry of an injunction

appropriate. “[T]he Court of Federal Claims has broad equitable powers to fashion an appropriate

remedy.” Turner Constr. Co., Inc. v. United States, 645 F.3d 1377, 1388 (Fed. Cir. 2011). Indeed,

the Tucker Act empowers this Court to “award any relief that [it] considers proper.” 28 U.S.C.

§ 1491(b)(2).

Concerning the scope of injunctive relief, consistent with this Memorandum and Order the

Court enjoins DEA from proceeding with its award to CEC under the present Request for

Quotation to the extent the award is based on the unlawful consideration of CEC’s late-received,

modified quotation. The DEA shall otherwise retain discretion over its path forward for the

procurement of Human Capital Support Services, if at all.

CONCLUSION

Accordingly, for the reasons stated above, the Court GRANTS IN PART and DENIES

IN PART Plaintiff’s Motion for Judgment on the Administrative Record (ECF No. 24). The Court

GRANTS IN PART and DENIES IN PART Defendant’s Cross-Motion for Judgment on the

Administrative Record (ECF No. 30). The Court GRANTS IN PART and DENIES IN PART

Intervenor-Defendant CEC’s Cross-Motion for Judgment on the Administrative Record (ECF No.

28). Consistent with this Memorandum and Order, Defendant is ENJOINED from proceeding

with its award to CEC under the present Request for Quotation to the extent the award is based on

the unlawful consideration of CEC’s modified quotation. The Clerk of Court is DIRECTED to

enter Judgment accordingly and mark this case as closed.

The parties are directed to CONFER and FILE a Notice by September 8, 2026, attaching

a proposed public version of this Memorandum and Order, with any competition-sensitive

or otherwise protected information redacted.

IT IS SO ORDERED.

Eleni M. Roumel

ELENI M. ROUMEL

Judge

August 24, 2026

Washington, D.C.

Fyi-For Your Information, Inc. v. United States

Authorities cited

Opinion · public domain