Mvl USA Inc. v. United States

In the United States Court of Federal Claims No. 26-561C (Filed Under Seal: July 30, 2026) (Reissued: September 22, 2026) FOR PUBLICATION *************************************** MVL USA INC., * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * and * * AL GHANIM COMBINED GROUP CO. * GEN. TRAD. & CONT. WLL * * Defendant-Intervenor. * * *************************************** Joseph L. Cohen, Burr & Forman LLP, Chicago, IL, for Plaintiff. With him were Kelsey M. Hayes and Chase Bullock, Burr & Forman LLP, Chicago, IL. Margaret J. Jantzen, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendant. With her were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director, and Geoffrey M. Long, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C. Sam Gdanski, Gdanski Law PC, Teaneck, NJ, for Defendant-Intervenor. With him was Abraham Gdanski, Gdanski Law PC, Teaneck, NJ. OPINION AND ORDER In this bid protest, MVL USA Inc. (“MVL”) challenges an award to intervenor Al Ghanim Combined Group (“AGCO”). See Compl. (ECF 1). The parties’ cross- motions for judgment on the administrative record are fully briefed, and I have heard oral argument.1 MVL raises a profusion of issues — more than a dozen, depending on how one counts. Many of them are untimely and forfeited; others fight the deferential standard of review; others contradict the factual record. But one sticks to the proverbial wall. MVL’s Motion for Judgment on the Administrative Record is therefore GRANTED, and the government’s and AGCO’s motions are DENIED. AGCO’s original cross-motion is DENIED AS MOOT. The case is REMANDED for further proceedings. The government is ENJOINED from actions inconsistent with this Opinion, as specified below. BACKGROUND I. The Solicitation The Army Corps of Engineers (“Agency”) issued Solicitation No. W5J9JE25R0003 (“Solicitation”), seeking construction, maintenance, and related services at facilities in Kuwait. AR 973–1003.2 The Solicitation contemplated a single indefinite delivery, indefinite quantity job-order contract, under which the awardee would receive task orders for individual projects. AR 40, 113.  Pursuant to the protective order in this case, the Court initially filed this opinion under seal on July 30, 2026, for the parties to propose redactions of confidential or proprietary information. See Sealed Opinion (ECF 54); Protective Order (ECF 11). The parties were directed to propose redactions to the opinion and sealed transcript of the oral argument by August 13. See (ECF 54). On August 13, the Court received the parties’ proposed redactions for the opinion. See (ECF 57). However, the parties failed to submit redactions to the transcript and did not justify all redactions to the opinion. See (ECF 57-1). On August 19, the Court issued an order giving the parties until September 2 to move for leave to file the requested materials out of time. See Order (ECF 58). On September 2, the Court received the parties’ motion and proposed redactions to the transcript and supporting memorandum for the transcript and opinion. See (ECF 65); (ECF 65-1). On September 22, the Court granted the parties’ motion for leave to file their proposed redactions out of time. See Order (ECF 66). The Court has incorporated all redactions, and marks them with bracketed ellipses (“[. . .]” below. 1 Pl.’s Mot. for J. on the Admin. R. (“Pl.’s MJAR”) (ECF 25); Def.’s Cross-Mot. for J. on the Admin. R. & Resp. (“Def.’s MJAR”) (ECF 26); Def.-Intervenor’s Am. Cross-Mot. for J. on the Admin. R. & Resp. (“Def.-Int.’s MJAR”) (ECF 34); Pl.’s Resp. & Reply (“Pl.’s R&R”) (ECF 35); Def.’s Reply (ECF 36); Def.- Intervenor’s Reply (ECF 37); Oral Arg. Tr. (“Tr.”) (ECF 45). Defendant-Intervenor’s amended motion superseded an original motion. See (ECF 27). Defendant-Intervenor moved for leave to file a surreply. See Def.-Intervenor’s Mot. for Leave (ECF 41). Despite deficiencies in the proposed surreply’s timing and content, I granted Defendant-Intervenor’s motion at oral argument and ordered Defendant- Intervenor to file the surreply no later than July 30, 2026. See Tr. at 13; Order (ECF 49). As of publication, Defendant-Intervenor has not filed the surreply. Having seen its substance, I consider it unnecessary for my decision. The parties filed supplemental letters in response to questions at argument. See Def.-Intervenor’s Notice (ECF 50); Def.’s Ltr. (ECF 51); Pl.’s Ltr. (ECF 52). 2 Citations are to the eighth and final amended version of the Solicitation. -2-  The Solicitation provided three factors for evaluation of proposals: Factor 1 – Management Approach, Factor 2 – Past Performance, and Factor 3 – Coefficients and Composite Rates. AR 977, 986. Each of those factors is relevant to the present protest. In evaluating offerors’ management approaches for Factor 1, the Agency looked to whether proposals “demonstrated construction management competencies and offerors’ ability to effectively allocate, manage, and control resources (personnel, equipment, and materials) across multiple concurrent projects to ensure on-time and within-budget completion.” AR 977. Each offeror had to describe, among other things, its structure and its approach to management and performance. AR 977–78. They also had to provide a chart “depicting” the organization of the offeror’s personnel and subcontractors, including lines of communication and authority. AR 977, 989; see also AR 990 (“More weight will be given for an organizational chart that makes logical relationships and lines of communication between the contractor and subcontractors.”). Proposals were to receive one of five adjectival ratings: Outstanding, Good, Acceptable, Marginal or Unacceptable. AR 985, 988–89. Evaluation of past performance under Factor 2 was intended to “inform an overall confidence assessment regarding [offerors’] ability to meet the contract requirements.” AR 979. Review centered on the offerors’ submissions of relevant past projects, plus the Agency’s own review of other sources including information in the Contractor Performance Assessment Reporting System (“CPARS”). AR 981. The Agency would express its confidence using, again, five adjectival ratings: Substantial Confidence, Satisfactory Confidence, Limited Confidence, No Confidence, and Unknown Confidence (Neutral). AR 986, 994. The Agency evaluated pricing under Factor 3. Many tasks to be performed under the job-order contract were to be pre-priced using the Unit Price Book, incorporated as “part of the awarded contract.” AR 998. But performance also includes other costs, including overhead, profits, and so forth. Offerors were required to tally up those costs and express them in terms of proposed “coefficients” — cost multipliers, essentially — for line items. AR 996, see also AR 2020. The Agency would then weight those coefficients according to a pre-set formula and combine them to reach a “Bottom Line Sum,” AR 995–96, reflecting an overall multiplier for the weighted combination of pre-priced work items. The bottom-line sum then became the reference point for the Agency’s price evaluation. The Solicitation required the Agency to evaluate coefficients and pricing for completeness, balance, and “reasonableness” using the analysis set out in Federal Acquisition Regulation (“FAR”) Subpart 15.305(2). AR 995. -3- and their subcontractors.” AR 2046. That omission, the SSA reasoned, “compounds” risks arising from MVL’s subcontractor-based performance strategy. Id.; see also AR 2054 (“MVL’s plan did address and mitigate some of these risks, but a major flaw in its proposal was its failure to provide a communication plan with subcontractors.”). AGCO, in contrast to MVL, planned to self-perform most work. The SSA found, after weighing the two proposals, that “AGCO’s plan to self-perform the majority of the work is an advantage over MVL’s plan to subcontract and supervise.” AR 2054. 2. Supervision by the “Project Manager” Along similar lines, the Agency questioned MVL’s plan for managing performance across different locations in Kuwait. MVL’s proposal described a “Program Management Office” staffed by a “Project Manager” and other personnel. AR 8179. The project manager would be responsible for overseeing superintendents based at site offices established at work locations. AR 8178–79. The SSEB noted that the project manager would be a “corporate official not based on the job site.” AR 2015. That, the SSEB said, represented a weakness because MVL had not presented a plan for communications with the work locations. Id. The SSEB questioned whether the project manager would be aware of day-to-day issues at work sites. AR 2015–16. The SSA agreed. AR 2054. The Agency did not express similar concerns about AGCO’s strategy. The SSA believed AGCO had “provided a more detailed Management Plan often exceeding the requirements of the solicitation and providing benefits to the Government that would be an advantage over MVL’s proposal.” AR 2053. 3. Work before approval Two weaknesses stemmed from the Agency’s perception that MVL planned to begin work on task orders before receiving approval. MVL had anticipated, as a potential obstacle to performance, that there would be “[c]ompressed schedules requiring early material procurement and delivery ahead of subcontractor mobilization or long-lead vendor lead times.” AR 8201. To anticipate that challenge, MVL said that it “maintains a catalog of pre-approved and historically accepted materials,” making it possible to “immediately initiate procurement upon scoping, thereby minimizing waiting periods typically associated with the initial submittal approval cycle.” Id. MVL said that “[f]or materials known to have volatile availability or longer lead times,” it “initiates procurement immediately following the joint scoping meeting, often before NTP [notice to proceed] is issued.” Id.; see also AR 8188 (“MVL begins mobilization planning and access coordination during the joint scoping phase. This includes … sourcing long-lead materials[.]”). -5-  The SSEB understood MVL to mean that it planned to “procur[e] previously accepted materials prior to receiving approval by the Government through the required submittal process.” AR 2016; see also id. (“The offeror made multiple references to beginning work prior to the issuance of the Notice to Proceed (NTP). The offeror also stated that they will incur costs prior to receiving permission from the Government to begin work.”) (citations omitted). But the SSEB did not consider that approach satisfactory because materials MVL used on task orders in the past might not be acceptable again: “[T]he prior contracts are standalone and what has met prior specifications may not be acceptable on future task orders.” Id. Relying on past approvals before approval for a given task order thus creates risks, including “non-conforming materials being purchased, requests for variances, and/or delays caused by long lead items needing to be reordered,” or the possibility that “non- compliant work could be performed” and that “directed removal of the noncompliant work” could be necessary. Id. The SSA shared the SSEB’s concern that MVL would “complet[e] work or order[] materials before they are authorized,” or “begin work before NTP has been issued.” AR 2055. That plan, the SSA stated, is not “authorized by the contract and could lead to unauthorized expenditures, rework, delay due to re-ordering items, and general inefficiencies such as requesting scope variances.” Id. 4. Non-prepriced items Both AGCO and MVL proposed ways to speed up acquisition of non-prepriced items. AGCO stated that it would bifurcate treatment of such items into “recurring” and “non-recurring” tracks. AR 6284. For recurring items, it would “proactively” submit “three independent supplier quotations” to the contracting officer, negotiate a price, and then treat the new price as a contract modification, “thereby streamlining future task orders.” Id. AGCO provided examples of how that process had worked in the past. Id. For non-recurring items, AGCO described how it would obtain bids and incorporate the price into a given task order. Id. The SSEB assigned a strength to AGCO because that plan “formaliz[ed] the pricing into the contract” and would “reduce timelines across the task orders when these items need to be procured again.” AR 2010. MVL’s approach seems to have been somewhat different. MVL’s plan was to first look for “the most closely related [Unit Price Book] line item” and justify the substitution to the Agency. AR 8202–03. Any such “[Unit Price Book] substitutions … w[ould] be documented in the proposal and subsequently in the task order award or contract modification[.]” AR 8203. If no Unit Price Book substitute exists, and the -6- price falls below a specified contractual threshold, MVL stated that it would submit “three competitive vendor or subcontractor quotes.” Id. The SSA noted that AGCO’s plan “[. . .],” which “will simplify negotiation of task orders and decrease price risk.” AR 2055. The SSA did not comment on the analogous aspect of MVL’s proposal. B. Factor 2 – Past Performance Although both MVL and AGCO received “substantial confidence” ratings for past performance, the SSEB identified two of MVL’s CPARS entries (out of 42 total) mentioning [. . .]. AR 2017. The SSEB treated those entries as substantiating its concerns about MVL’s lack of a communications plan. AR 2018. The SSA likewise “determined that MVL’s CPARS evaluation history does provide support to the level of risk associated with its management approach.” AR 2055. C. Factor 3 – Coefficients and Composite Rates MVL proposed a lower price than AGCO. The Agency obtained an independent government estimate, which had a bottom-line sum coefficient of [. . .]. AR 2021. The Agency’s price analyst also calculated that the average bottom-line coefficient, across all submitted proposals, was [. . .]. Id. The analyst then compared those reference points to MVL’s and AGCO’s coefficients. AGCO’s bottom-line sum coefficient was [. . .] lower than the government’s estimate and about [. . .] higher than the average. AR 2023. MVL’s, though, was almost [. . .] lower than the government’s estimate and about [. . .] lower than the average. AR 2031. The Agency’s price analysis expressed concern about both offerors’ pricing. The analyst found that MVL’s and AGCO’s year-to-year escalation rates were unbalanced. AR 2024, 2032. That led the analyst to question whether either MVL or AGCO would be able to complete work to the Agency’s standards: “[T]he offeror may not be able to complete all the task orders throughout the life on the contract due to price increases driven by demand or market strategy,” or “may inflate the proposals by adding unnecessary pricing data[.]” AR 2024 (AGCO), AR 2032 (MVL). As to MVL, the analyst appears also to have feared — in “addition[]” to the unbalanced pricing — that the proposal did not [. . .]. AR 2032. “[A]ll pre-priced work under the contract will be performed [. . .].” Id. That, according to the analyst, “presents a high risk to the government that the offeror will not be able to complete task orders under this proposed pricing.” Id. The SSA shared the analyst’s concerns about MVL’s low pricing. The SSA downplayed MVL’s unbalanced price escalation, saying it “will likely lead to lower prices across all contract years … , while still providing some escalation for the -7- contractor to account for changed market conditions.” AR 2052. But to the SSA, MVL’s low overall coefficients implied that MVL “plans to perform task orders for [. . .].” AR 2052. The SSA underscored the point in the tradeoff analysis: … MVL’s pricing introduces serious risk regarding its ability to complete task orders [. . .] as it proposes [. . .]. Additionally, I have concerns that MVL’s lower coefficients present pricing risks and may indicate an unrealistic bid, or ‘buy-in,’ where the offeror may cut corners on materials or qualified personnel to maintain profitability, causing project delays. To make up for a low bid, the offeror may actively seek to identify ‘unexpected’ Non-PrePriced work not listed in the price book, resulting in contentious negotiations and a high volume of change orders that could result in the final cost of a task order being equal to or higher than AGCO’s proposal. AR 2056. The SSA mentioned the analyst’s concerns about AGCO’s unbalanced pricing, but found it acceptable in the same terms applied to MVL. AR 2058. The SSA found that AGCO’s prices were reasonable based on comparison to the government’s estimate and the average of other offerors. AR 2057. D. Award Based on the just-summarized analysis, the SSA “determined that an award to AGCO represents the best value to the Government”: AGCO’s management approach provides advantages to the Government over MVL’s, while MVL’s proposal introduces higher risks of unsuccessful performance. The biggest risk is MVL’s plan to subcontract significant portions of the work, but not providing a plan for communicating with subcontractors. This risk is elevated when reviewing MVL’s prior CPARS ratings that documents [. . .] on prior Government projects. Additionally, while MVL does provide lower proposed coefficients than AGCO, there is significant pricing risk associated with those lower coefficients. AR 2056. The SSA acknowledged that AGCO’s price was higher than other offerors, but found that “non-priced factors” in AGCO’s proposal “are worth paying the higher price for.” AR 2058. The SSA accordingly awarded to AGCO a second time. Id. MVL’s present complaint follows. -8-  DISCUSSION I. Legal Standards A. Jurisdiction and Standing To reach the merits of the case, I must first determine that the Court has jurisdiction over Plaintiff’s claims. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). This Court’s jurisdiction in post-award bid protests is derived from the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(a)–(b), 110 Stat. 3870, 3874–75 (1996) (codified at 28 U.S.C. § 1491(b)). See Dyonyx, L.P. v. United States, 83 Fed. Cl. 460, 464–65 (2008). The Tucker Act now grants this Court “jurisdiction to render judgment on an action by an interested party objecting to ... the award of a contract or any alleged violation of statute or regulation in connection with a procurement[.]” 28 U.S.C. § 1491(b)(1). This Court is empowered under the statute to “award any relief that the court considers proper, including declaratory and injunctive relief[.]” 28 U.S.C. § 1491(b)(2). Plaintiff must also have standing to challenge the contract award. Plaintiff has Article III standing because it claims an injury — specifically, denial of an award — which is traceable to the allegedly defective procurement process and which could be redressed by this Court. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (“The Court of Federal Claims, though an Article I court, ... applies the same standing requirements enforced by other federal courts created under Article III.”). To establish that it has statutory standing as an interested party, see 28 U.S.C. § 1491(b)(1); CACI, Inc.-Fed. v. United States, 67 F.4th 1145, 1151 (Fed. Cir. 2023), a plaintiff must show (1) that it “is an actual or prospective bidder” and (2) that it “possesses the requisite direct economic interest.” Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) (citing Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002) (itself citing Lujan, 504 U.S. at 561)). Here, there is no dispute that Plaintiff meets the two-part test. First, Plaintiff was an actual bidder that submitted a proposal. AR 8174. Second, Plaintiff has the requisite economic interest: It was one of two offerors subject to re-evaluation during the previous corrective action, AR 1999, 2005–18, and — as discussed further below — it has “a substantial chance of being awarded the contract” if its claims lead the Agency to reconsider its evaluation. McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 405 (2013); see also Weeks Marine, 575 F.3d at 1359 (quoting Rex Serv. Corp., 448 F.3d at 1308). -9-  B. Standard of Review This Court reviews bid protests “pursuant to the standards set forth in section 706 of title 5,” i.e., the Administrative Procedure Act. 28 U.S.C. § 1491(b)(4); see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). The protester must show that the agency’s action was arbitrary and capricious and that it was prejudiced by the agency’s conduct. Banknote Corp., 356 F.3d at 1350–51; 5 U.S.C. § 706; see Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005); Weeks Marine, 575 F.3d at 1358–59. There are two bases for setting aside government procurements as arbitrary and capricious: “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001); Weeks Marine, 575 F.3d at 1358 (quoting PGBA, LLC v. United States, 389 F.3d 1219, 1225 n.4 (Fed. Cir. 2004)); see also Bannum, 404 F.3d at 1351; Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir. 2000). The first route involves determining “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.” Impresa, 238 F.3d at 1332–33 (quotes omitted) (quoting Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). To succeed, “the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Id. at 1333 (quotes omitted) (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C. Cir. 1994) (itself quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973))). The second route requires the disappointed bidder to “show a clear and prejudicial violation of applicable statutes or regulations.” Id. (quotes omitted) (quoting Kentron, 480 F.2d at 1169, and Latecoere, 19 F.3d at 1356). In either case, this Court’s review is “highly deferential” to agency decision-making, Advanced Data Concepts, 216 F.3d at 1058 — especially in an award based on best value, where “the contracting officer ha[s] even greater discretion than if the contract were to have been awarded on the basis of cost alone.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004); see also Cleveland Assets, LLC v. United States, 883 F.3d 1378, 1382 (Fed. Cir. 2018). “Further, in addition to identifying ‘a significant error in the procurement process,’ a protestor must show ‘that the error prejudiced it.’” Wis. Physicians Serv. Ins. Corp. v. United States, 151 Fed. Cl. 22, 32 (2020) (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996)). Prejudice cannot be presumed. Sys. Stud. & Simulation, Inc. v. United States, 22 F.4th 994, 998 (Fed. Cir. 2021). “[T]o establish prejudice, a protester must show that, had it not been for the alleged error - 10 - in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.” Data Gen. Corp., 78 F.3d at 1562. When resolving motions for judgment on the administrative record under Rule 52.1(c), this Court proceeds “as if it were conducting a trial on the record.” Bannum, 404 F.3d at 1354 (addressing former RCFC 56.1); see also Young v. United States, 497 F. App’x 53, 58–59 (Fed. Cir. 2012) (addressing the standard under RCFC 52.1 and citing Bannum, 404 F.3d at 1356). II. Merits As mentioned, MVL raises a great many challenges to the procurement process. I conclude that the Agency erred, and prejudiced MVL, by basing its decision on an improper price realism analysis. The remaining issues are either forfeited or substantively insufficient. I further conclude that limited injunctive relief is appropriate. A. The Agency erred by evaluating for price realism. 1. Error MVL argues that the Agency’s evaluation of MVL’s coefficients included an improper “realism” analysis. The government essentially concedes as much in its reply, and I agree. Def.’s Reply at 11. “[P]rice reasonableness generally addresses whether a price is too high, whereas cost realism generally addresses whether a cost estimate is too low.” Agile Def., Inc. v. United States, 959 F.3d 1379, 1384 (Fed. Cir. 2020) (alteration modified) (quoting First Enter. v. United States, 61 Fed. Cl. 109, 123 (2004)). The analyses are different. When a solicitation for a firm-fixed price contract calls for a price reasonableness analysis and does not put offerors on notice that the procuring agency might also consider realism, a realism analysis would apply unstated evaluation criteria and is therefore forbidden. See, e.g., Ceres Env’t Servs., Inc. v. United States, 97 Fed. Cl. 277, 306 (2011); UnitedHealth Mil. & Veterans Servs., LLC v. United States, 132 Fed. Cl. 529, 561 (2017). Here, the Agency notified offerors that the Solicitation “will result in a Firm- Fixed-Price (FFP) contract.” AR 598; see also AR 12.3 The Solicitation expressly called for a reasonableness analysis. AR 995. No party claims that anything in the Solicitation expressly or implicitly authorized the Agency to review for realism. See 3 The Agency added that language to the Solicitation in the sixth amendment and incorporated it into the eighth amendment. See AR 598, 912, 974. - 11 - UnitedHealth Mil. & Veterans Servs., 132 Fed. Cl. at 554–55 (discussing language that implies a price realism analysis). But realism considerations pervade the analysis of MVL’s pricing. The price analyst’s report expressed concern that MVL’s proposed coefficients [. . .] were so low that they “present[ed] a high risk to the government that [MVL] will not be able to complete task orders under this proposed pricing.” AR 2032. The SSA described MVL’s proposal as “an unrealistic bid” and [. . .]. AR 2056 (emphasis added). The Agency, in short, criticized MVL’s pricing as too low, a consideration it was not permitted to address. 2. Prejudice Because the Agency erred, the next question is whether the improper realism analysis prejudiced MVL. In this case, with a well-developed factual record, showing prejudice means establishing that “but for the error, [MVL] would have had a substantial chance of securing the contract.” Savantage Fin. Servs., Inc. v. United States, 150 Fed. Cl. 307, 317–18 (2020) (quoting Oracle America, 975 F.3d at 1291) (quotes omitted); see eSimplicity, Inc. v. United States, 162 Fed. Cl. 372, 381 n.9 (2022). I conclude that standard is met. On any reading of the record, findings about the risks potentially flowing from MVL’s pricing were an important part of the SSA’s decision to choose AGCO instead. Both the price analyst and the SSA considered MVL’s low price to present a high risk that MVL would not complete the contract. AR 2032, 2056. The government says that the Agency’s concerns about MVL’s subcontractor communications were the main reason for preferring AGCO, see Def.’s MJAR at 23–24 (citing AR 2056); Def.’s Reply at 11, but that does not take away from the fact that the Agency’s decision rests in part on a forbidden consideration. Even if the Agency emphasized the communications issue, the realism issue played an important role. The tradeoff between MVL and AGCO was straightforward. The Agency had substantial confidence in both offerors’ ability to perform. See AR 2011, 2044, 2051; see also AR 983 (defining “Substantial Confidence” to mean that “the Government has a high expectation that the offeror will successfully perform the required effort”). The Agency thought AGCO had a better management approach. See AR 2005, 2053. But MVL offered a better price.4 AR 2056. A proper analysis would have focused on whether AGCO’s management was worth the price premium, and conversely, on whether MVL’s lower price made it the better value. Set up that way, there is a substantial chance the Agency would have chosen MVL. Cf. VSolvit, LLC 4 I set aside, for the moment, other potential errors that might have affected the Agency’s evaluations. - 12 - v. United States, 166 Fed. Cl. 201, 212–13 (2023) (reasoning that a protestor’s substantial chance of receiving a contract would increase if an allegedly improper price realism analysis were excluded on re-evaluation). But the Agency’s improper consideration of realism distorted the analysis by turning MVL’s advantage into a disadvantage. Because the Agency thought the price created performance risks, MVL’s low pricing weighed against it, not for it. In the SSA’s own words: “[W]hile MVL does provide lower proposed coefficients than AGCO, there is significant pricing risk associated with those lower coefficients.” AR 2056. Turning the tables that way might well have cost MVL its chance of selection, which is adequate to show that MVL was prejudiced by the error. Ceres Env’t Servs., 97 Fed. Cl. at 306. B. Other arguments fail. 1. Several arguments are forfeited MVL’s Response & Reply raises four arguments that did not appear in its principal brief. The arguments, had they been preserved, vary in strength. They are: (1) that AGCO’s proposal was unacceptable because it guaranteed pricing for 90 days rather than the 120 days required by the Solicitation, compare AR 6429 (Item 13D), with AR 6430 (Item 17); Pl.’s R&R at 7–8;5 (2) that the Agency improperly incorporated MVL’s Factor 2 – Past Performance materials into evaluation of Factor 1 – Management Approach, Pl.’s R&R at 14;6 (3) that in comparing AGCO’s coefficient 5 If MVL had raised that argument at the proper time, it might have been grounds for remand. Cf. Camden Shipping Corp. v. United States, 89 Fed. Cl. 433, 439–42 (2009) (holding that revival of an offer that remained open for less than the required acceptance period would harm the competitive process). The government’s response is that because the government accepted AGCO’s offer in less than 90 days, the issue is moot. Def.’s Reply at 6–7; Tr. at 113–15. But that misses the economic significance of the guarantee. When an offeror guarantees its pricing for an amount of time, the offeror accepts the risk of upward price fluctuations during that period. That could lead an offeror to propose a higher price. A longer guarantee means more risk than a shorter guarantee, meaning that an offeror who guarantees a price for 90 days could have an advantage over offerors who guarantee the price for 120 days. If that is so, AGCO’s violation of the Solicitation’s terms could have yielded a systematic advantage over all the offerors that complied. See Camden Shipping Corp., 89 Fed. Cl. at 440. Far from solving the problem, the Agency’s acceptance potentially confirms the unfairness of AGCO’s offer. 6 That argument likely would have lacked merit even if presented properly. As MVL’s own authority shows, the Agency had discretion to review offer-related materials for any relevant purpose. In re Apptis, Inc., B-299457, 2007 WL 5010845, at *8 (Comp. Gen. May 23, 2007) (“An agency is not precluded from considering an element of a proposal (such as past performance) under more than one evaluation criterion where the element is relevant and reasonably related to each RFP criterion under which it is considered.”). Other authorities concur. See, e.g., DM Petroleum Operations Co. v. United States, 115 Fed. Cl. 305, 311 (2014) (“Agencies are well within their discretion to consider relevant information under more than one evaluation factor.”); CGS Adm’rs, LLC v. United States, 110 Fed. Cl. 431, 449 (2013) (“[C]onsidering certain pieces of information relevant to an offeror’s proposal for multiple purposes during evaluation proceedings is not impermissible.”); Office Depot, Inc. v. United States, 95 Fed. Cl. 517, 533 n.18 (2010) (“The general rule is that ‘an agency is not precluded from - 13 - to the average of other offerors, the SSA used an average coefficient higher than the value reflected on the price analyst’s spreadsheet, thus understating how much AGCO’s coefficient exceeded the average, id. at 24;7 and (4) that the Agency failed to reconstitute an entirely new SSEB after its original corrective action, id. at 13 n.2.8 But I deem them forfeited, so I do not reach them. In some circumstances, I have excused a party’s late presentation of an argument that was related to theories developed in the principal brief and which the adverse parties had the opportunity to counter. 22nd Century Techs., Inc. v. United States, 176 Fed. Cl. 389, 398–99 (2025) (considering a new disparate-evaluation argument related to an issue addressed in the principal briefs). Here, though, not only do MVL’s new arguments go beyond the issues originally presented, but MVL came up with four of them, and the government and AGCO had less than a week to reply. See Order (ECF 20) (setting the briefing schedule). It would be unfair to the government and AGCO to consider them. Metrostar Sys., LLC v. United States, 180 Fed. Cl. 708, 716 n.5 (2026). 2. Lack of a communications plan The main focus of the parties’ briefing is on MVL’s argument that the Agency faulted MVL for omitting a “communications plan.” MVL says that the Agency applied an unstated evaluation criterion and evaluated MVL and AGCO unequally. Agencies must limit their evaluation of offers to the criteria stated in the solicitation, eSimplicity, Inc., 162 Fed. Cl. at 379, and must apply the same standards to all offerors, Centerra Security Servs. GmbH v. United States, 176 Fed. Cl. 219, 236 (2025). But I do not agree that the Agency breached that obligation here. considering an element of a proposal under more than one evaluation criterion where the element is relevant and reasonably related to each criterion under which it is considered.’”) (quoting InnovaTech, Inc., B–402415, 2010 WL 1633382, at *4 (Comp. Gen. Apr. 8, 2010)). MVL did preserve a related but separate argument — that the Agency did not review MVL’s and AGCO’s performance materials evenhandedly — which I will address below. 7 The government claims that it discovered, when reviewing that argument, that it had included the wrong coefficient calculation spreadsheet in the administrative record. See Def.’s 2d Mot. to Correct the Admin. R. at 1–2 (ECF 40). The lower average coefficient appears in a spreadsheet prepared before final offers, and the higher one — used by the SSA — is in the final spreadsheet. I granted the government’s motion to supplement the administrative record with the later spreadsheet. See Order (ECF 43). MVL questions the Agency’s story, see Tr. at 7–11, and I would hesitate to reject a plaintiff’s argument for judgment on the administrative record based solely on a surprise document submitted after the close of briefing. But because of MVL’s forfeiture, the government avoids the consequences of its error. 8 The parties disagree as to what, exactly, the government agreed to do and whether the Agency met its commitments. Pl.’s R&R at 13 n.2; Def.’s Reply at 9; Tr. at 70–74. The record may lack documents needed to evaluate the parties’ respective positions. Because of the forfeiture, I need not sort it out. - 14 -  At the threshold, it does not appear that the SSA actually required a formal plan in the first place. Everyone agrees that the Solicitation did not call for a formal “communications plan” as such. What the Solicitation did demand was a good management approach, which necessarily entails communications among the players. For example, the Solicitation required an organizational chart that “make[s] logical relationships and lines of communication between the contractor and subcontractors.” AR 978. It also emphasized that the Agency would evaluate the proposals “to determine the effectiveness of the relationships and workflow” between an offeror and its subcontractors. Id. Put another way, if an offeror plans to rely on subcontractors, it behooves the offeror to explain how it will communicate with them. The SSA’s references to the Solicitation calling for a “communications plan” should probably be interpreted in that light. The SSA was concerned that MVL’s strategy put a premium on coordination between MVL and its subcontractors, and that MVL did not adequately explain how communication would work. According to the SSA, the lack of a “formal communication plan” between MVL and its subcontractors “introduces the possibility of misunderstood scope, unclear work sequence, missed material and equipment procurements, unclear delegation of tasks, and issues with other aspects of coordination required to successfully execute any task orders.” AR 2048. Although some of the SSA’s language was inartful and inexact, it is best read as simply saying that MVL could not establish the soundness of its management strategy without more detail about communication. That is a permissible reading of the Solicitation. See PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 536–37 (2010). The record appears to rationally bear out the SSA’s thinking. MVL’s proposal emphasized its subcontractor-driven approach to fulfilling task orders, AR 8189–90, and advertised MVL’s deep bench of subcontracting crews that bring flexibility to scheduling and availability, AR 8188. But the proposal gave less attention to mitigating what the Agency considered the chief risk of MVL’s approach — that each subcontractor is a separate entity presenting elevated communication and coordination risks. See, e.g., PlanetSpace, Inc., 92 Fed. Cl. at 537; Davies Rail & Mech. Works, Inc., B-278260, 1998 WL 241166, at *8 (Comp. Gen. Feb. 25, 1998). This Court defers to an agency’s view that an offeror should have explained its performance strategy in more detail. See Pac. Eng’