Massman Construction Co. v. United States

In the United States Court of Federal Claims MASSMAN CONSTRUCTION CO., Plaintiff, No. 25-2158 v. (Filed: July 7, 2026) 1 Filed under seal: June 15, 2026 THE UNITED STATES, Reissued: July 7, 2026 Defendant. Dirk Haire, David P.J. Timm, & Michael J. Brewer, Burr & Forman LLP, Washington, D.C., for Plaintiff. Mariana Teresa Acevedo, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendant. OPINION AND ORDER LERNER, Judge. I. Introduction Plaintiff Massman Construction Co. (“Massman”) brings this post-award bid protest challenging a contract award by the U.S. Army Corp of Engineers, Tulsa District (“USACE” or “Agency”) for the construction of the Webbers Falls Tainter Gate Replacement & Repair, Webbers Falls Lock & Dam (“L&D”) 16, in Gore, Oklahoma (“Project” or “Contract”). Am. Compl. ¶ 1, ECF No. 25. The Contract was originally awarded to McMillen, Inc. (“McMillen”). After Massman filed its protest, the Court remanded this matter back to the Agency at its request to take partial corrective action. ECF No. 17. The Agency took that action but ultimately re- awarded the Contract to McMillen. ECF No. 22 at 1. Massman now argues the Agency’s corrective action did not cure the prejudice from the original award and is therefore not moot. Am. Compl. ¶ 9. Currently before the Court are the parties’ cross-motions for judgment on the administrative record. Pl.’s Mot. for J. on Admin. R. (“Pl.’s MJAR”), ECF No. 26; Def.’s Mot. for J. on Admin. R. (“Def.’s MJAR”), ECF No. 29. Plaintiff has not demonstrated that the Agency’s ratings for Past Performance and Technical Approach were without a rational basis. 1 This Opinion was filed under seal on June 15, 2026. ECF No. 39. The parties jointly proposed redactions. ECF No. 46. Accordingly, the Court reissues this Opinion with the agreed upon redactions, which are noted with bracketed asterisks ([***]) or redacted images. 1 And to the extent the Agency’s original exercise of options was unlawful, its partial corrective action cured any violation and resulting prejudice. But USACE did not rationally explain McMillen’s higher rating for the “Organization” subfactor, which formed the basis for the Agency’s finding that the proposals were technically equivalent. The Agency, on remand, must either justify this disparity or explain why McMillen’s lower-priced, but technically inferior proposal provides the best value to the government. Accordingly, Plaintiff’s Motion for Judgment on the Administrative Record is GRANTED-IN-PART AND DENIED-IN-PART, and Defendant’s Cross-Motion for Judgment on the Administrative Record is GRANTED-IN-PART AND DENIED-IN-PART. Count III of Plaintiff’s Amended Complaint is DISMISSED AS MOOT. II. Background A. Solicitation and Evaluation On July 11, 2025, the USACE issued Request for Proposals No. W912BV25RA018 (“RFP” or “Solicitation”) as a negotiated RFP under Federal Acquisition Regulation (“FAR”) Part 15. Tab 26 at Admin. R. (“AR”) 130. The Solicitation sought a prime construction contractor for the design of new Tainter gates2 to replace the existing spillway gates at Webbers Falls L&D. Id. The Source Selection Plan (“SSP”) noted the project would also have “options to repair other gates.” Id. The final RFP required the successful offeror to replace or repair Tainter Gates 7, 8, 11, 5, 10 & 12. Tab 152 at AR 4544. The SSP described the work as follows: The gates will be designed to work within the constraints of the existing structure geometry. The existing trunnion yoke anchorage, trunnion girder, trunnion girder anchorage, and mechanical equipment will be re-used. The capacity of the existing features will be verified with the new gate weight and operating loads. The construction contract will include fabrication, delivery, installation, removal of the existing gates, and other related activities such as setting stoplogs, storage, and salvage. The gate design will be modernized, detailing will be improved to minimize fatigue/fracture concerns, and materials and fabrication requirements updated to be consistent with current guidance. Tab 26 at AR 130. The RFP’s objective was “to identify and select the offeror that can best meet the Government’s requirements at a reasonable price.” Id. Specifically, the Solicitation stated the award would go to the proposal with “the best overall value to the Government, considering all non-price factors described herein, and price.” Tab 30 at AR 303. 2 A Tainter gate is a type of radial arm floodgate used in dams and canal locks to control water flow. See Tainter Gate, Dunn County Historical Society, https://www.dunnhistory.org/tainter- gate (last visited May 14, 2026). 2  The Solicitation listed five evaluation factors: Factor 1—Past Performance; Factor 2— Management Approach; Factor 3—Performance Capability; Factor 4—Participation of Small Business Concerns; and Factor 5—Price. Id. at 306–07. The first four factors were considered “technical factors” and listed in descending order of importance. Id.; Tab 26 at AR 132. When combined, the technical factors were considered significantly more important than price. See Tab 26 at AR 132; Tab 30 at AR 303. For Factor 1 (Past Performance), the Agency stated it would consider “recency, relevancy (including context of data), and quality (including general trends in contractor performance and source of information).” Tab 26 at AR 141. Adjectival ratings were assigned for both Past Performance Relevancy and Performance Confidence. Id. at 141–42. The ratings applied the following criteria: Past Performance Ratings Very Relevant— Present/past performance effort involved essentially the same scope and magnitude of effort and complexities this solicitation requires. Relevant— Present/past performance effort involved similar scope and magnitude of effort and complexities this solicitation requires. Somewhat Relevant— Present/past performance effort involved some of the scope and magnitude of effort and complexities this solicitation requires. Not Relevant— Present/past performance effort involved little or none of the scope and magnitude of effort and complexities this solicitation requires. Performance Confidence Ratings Substantial Confidence— Based on the offeror’s recent/relevant performance record, the Government has a high expectation that the offeror will successfully perform the required effort. Satisfactory Confidence— Based on the offeror’s recent/relevant performance record, the Government has a reasonable expectation that the offeror will successfully perform the required effort. Neutral Confidence— No recent/relevant performance record is available or the offeror’s performance record is so sparse that no meaningful confidence assessment rating can be reasonably assigned. The offeror may not be evaluated favorably or unfavorably on the factor of past performance. Limited Confidence— Based on the offeror’s recent/relevant performance record, the Government has a low expectation that the offeror will successfully perform the required effort. No Confidence— Based on the offeror’s recent/relevant performance record, the Government has no expectation that the offeror will be able to successfully perform the required effort. 3 Id. For Factors 2 (Management Approach) and 3 (Performance Capability), the Agency used adjectival ratings of Outstanding, Good, Acceptable, Marginal, or Unacceptable. Tab 30 at AR 324–25. The ratings were assigned using the following criteria: Outstanding— Proposal indicates an exceptional approach and understanding of the requirements and contains multiple strengths, and risk of unsuccessful performance is low. Good— Proposal indicates a thorough approach and understanding of the requirements and contains at least one strength, and risk of unsuccessful performance is low to moderate. Acceptable— Proposal meets requirements and indicates an adequate approach and understanding of the requirements, and risk of unsuccessful performance is no worse than moderate. Marginal— Proposal has not demonstrated an adequate approach and understanding of the requirements, and/or risk of unsuccessful performance is high. Unacceptable— Proposal does not meet requirements of the solicitation, and thus, contains one or more deficiencies, and/or risk of unsuccessful performance is unacceptable. Proposal is unawardable. Id. For Factor 4 (Small Business Participation), the agency used similar adjectival ratings: Outstanding— Proposal indicates an exceptional approach and understanding of the small business objectives. Good— Proposal indicates a thorough approach and understanding of the small business objectives. Acceptable— Proposal indicates an adequate approach and understanding of small business objectives. Marginal— Proposal has not demonstrated an adequate approach and understanding of the small business objectives. Unacceptable— Proposal does not meet small business objectives. Tab 26 at AR 142. Factors 2 and 3 also contained subfactors. Tab 152 at AR 4545. Factor 2 contained the following subfactors: Subfactor 1—Technical Approach; Subfactor 2—Organization; Subfactor 3—Key Personnel. Id. These subfactors used the same adjectival ratings as Factor 2 overall and were also listed in descending order of importance. Id. For Technical Approach, offerors were required to “[d]iscuss how non-performance by subcontractors is 4 handled by the general contractor.” Tab 30 at AR 312–13. The Agency preferred “self- performance” based on cost savings from fewer subcontractors. Id. at 313. Offerors were required to provide unequivocal letters of commitment from key subcontractors for scopes “not to be self-performed,” including “Marine Construction.” Id. at 314. Factor 3 included only one subfactor: Proposed Contract Duration and Summary Schedule. Tab 152 at AR 4545. B. Contract Options The Solicitation contained four additional “options” on which offerors could bid in addition to the base option. Tab 30 at AR 292–93. The Solicitation incorporated FAR 52.217-5 (Evaluation of Options) by reference. Id. at 336. FAR 52.217-5 is used in solicitations when “(1) The solicitation contains an option clause; (2) An option is not to be exercised at the time of contract award; (3) A firm-fixed price contract . . . is contemplated; and (4) The contracting officer has determined that there is a reasonable likelihood that the option will be exercised.” FAR 17.208(c). On September 12, 2025, the Agency issued Amendment No. 5 to move the replacement of Tainter Gate 5 into Option No. 1, i.e., the Agency separated the work for replacing Gates 7 and 5. See Tab 56 at AR 1206. The Agency requested changes to Massman’s and McMillen’s proposals when it issued Amendment No. 5. Tab 96a at AR 3101; Tab 97a at AR 3122. Both Massman and McMillen told the Agency that this Amendment impacted (and increased) the final price of their proposals. Initial Source Selection Document (“Initial SSDD”), Tab 121 at AR 4044–45 (showing McMillen raised its proposed price from [***] to [***] and Massman raised its proposed price from [***] to [***]). C. Initial Award Massman and McMillen were the only two bidders to submit timely proposals in response to the Solicitation. Initial SSDD at AR 4032. A Source Selection Evaluation Board (“SSEB”) reviewed and evaluated the proposals. Id. The initial ratings were as follows: Id. 5 based on its lower total price. Id. at AR 4562–63; see also FAR 52.217-5 (“[T]he Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s).”). The Agency did not exercise any options under the re-awarded Contract. Final SSDD at AR 4564 (“The base tasks shall be awarded to McMillen, and the Government reserves the right to exercise the options in accordance with the terms and conditions of the Solicitation.”). On November 18, 2025, after Massman filed a pre-filing notice, but before Massman filed its Complaint, the Agency asked McMillen to “confirm the supplier for the required crane and provide any other information on [its] access to this crane” based on Massman’s pre-filing notice. Tab 137 at AR 4288. McMillen confirmed (1) it identified the [***] crane as the crane it would rent for the gate lift and (2) multiple companies had this crane or comparable cranes sufficient for the lift available for rental. Id. at AR 4287. The [***] crane was not mentioned in McMillen’s proposal. Pl.’s MJAR at 19. E. Procedural History Plaintiff filed its Complaint5 on December 23, 2025. Compl., ECF No. 1. The Complaint contained four primary allegations: (1) the Agency’s evaluation of Massman and McMillen’s “Past Performance” was arbitrary and capricious; id. ¶¶ 71–74, (2) the Agency’s evaluation of Massman and McMillen’s “Technical Approach” was arbitrary and capricious; id. ¶¶ 76–79, (3) the Agency’s exercise of options at the time of the award was unlawful because the Solicitation incorporated FAR 52.217-5; id. ¶¶ 81–85, and (4) the Agency arbitrarily assigned Massman a “Marginal” Small Business Participation score. Id. ¶¶ 87–89. The Court held a Joint Preliminary Status Conference and entered a briefing schedule on January 7, 2026. ECF No. 9. On February 13, 2026, Defendant moved to stay the briefing schedule “because the agency has been reconsidering its needs during the pendency of this matter and as a result this could lead to changes in requirements that would impact this case, to include possibly canceling the current procurement.” ECF No. 16 at 1. The Court granted Defendant’s unopposed Motion and ordered a Joint Status Report (“JSR”) by February 24, 2026. Order, Massman Construction Co. v. United States, No. 25-2158 (Fed. Cl. Feb. 13, 2026). In lieu of a JSR, the Government filed a “Notice of Corrective Action and Motion to Remand and Stay Briefing Schedule.” ECF No. 17. Defendant stated the Agency would take partial corrective action by issuing a new contract where “no options will be exercised at the time of award,” which it claimed would moot Count IV of Plaintiff’s Complaint. Id. at 1. Plaintiff 5 Massman mislabeled the last two Counts in its original Complaint and did not include any “Count III.” See ECF No. 18 at 2 n.2. This error was corrected in Plaintiff’s Amended Complaint. See Am. Compl. The Court refers to the Counts as labeled in the Complaint when describing the original Complaint. 10 opposed remand, alleging the partial corrective action would not “remedy the prejudice claimed by [Plaintiff].” ECF No. 18 at 3. The Court granted Defendant’s Motion on March 18, 2026, finding that a short remand would “serve the interests of efficiency and judicial economy.” ECF No. 21 at 2. The partial corrective action was ordered to be completed on or before April 1, 2026. Id. The parties filed a JSR on April 3, 2026. ECF No. 22. The JSR stated while the partial corrective action was complete, the parties continued to disagree about whether the decision to not exercise options mooted Count IV of Plaintiff’s Complaint. Id. at 1–3. However, the parties agreed that the revision of Massman’s Factor 4 (Small Business Participation) rating from “Marginal” to “Acceptable” mooted Count V. Id. at 2. Subsequently, Plaintiff filed an Amended Complaint alongside its MJAR, which omitted Count V. Am. Compl. The parties’ dispositive motions are now fully briefed and ripe for review. See Pl.’s MJAR; Def.’s MJAR; Pl.’s Response and Reply (“Resp.”), ECF No. 30; Def.’s Reply (“Reply”), ECF No. 31. III. Jurisdiction and Legal Standards A. Bid Protests and Standard of Review The U.S. Court of Federal Claims reviews an agency’s contract award under the standards set forth in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(1), (4). The Court determines whether the Government “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). A bid award may be set aside if either “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Off. Design Grp. v. United States, 951 F.3d 1366, 1371 (Fed. Cir. 2020) (citation omitted). To find a rational basis, the Court must determine “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (citation omitted). To establish a procedural violation, “the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Id. (citation omitted). “De minimis errors in the procurement process do not justify relief.” Off. Design Grp., 951 F.3d at 1374 (citation omitted). “Courts look for a reasoned analysis or explanation for an agency’s decision as a way to determine whether a particular decision is arbitrary, capricious, or an abuse of discretion.” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir. 1998). But an “explicit explanation is not necessary . . . where the agency’s decisional path is reasonably discernible.” DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1315 (Fed. Cir. 2021) (quoting Wheatland Tube Co., 161 F.3d at 1369–70). “Generally speaking, an agency must evaluate an offeror’s proposal based on the criteria set out in the solicitation.” Tetra Tech, Inc. v. United States, 137 Fed. Cl. 367, 383 (2017). At 11 the same time, “an agency still enjoys ‘great discretion in determining the scope of an evaluation factor.’” Id. (quoting Forestry Surveys & Data v. United States, 44 Fed. Cl. 493, 499 (1999)). “[W]hen weighing the merits of a proposal under a specific evaluation factor, an agency may consider all matters that offerors would reasonably have believed to be within the scope of the factor.” Id. (quoting Forestry Surveys & Data, 44 Fed. Cl. at 497). In addition to establishing agency error under the APA, a disappointed bidder must demonstrate that it was significantly prejudiced by that error. Bannum, Inc., 404 F.3d at 1351. A bidder is significantly prejudiced if “there was a substantial chance it would have received the contract award but for” the agency’s errors. Id. at 1353 (citation modified). “[T]here is no presumption of prejudice when a protestor demonstrates irrationality in an agency decision.” Sys. Stud. & Simulation v. United States, 22 F.4th 994, 998 (Fed. Cir. 2021). Instead, “[t]he protestor must show prejudice under the usual standard. The Supreme Court has noted that, at least in some contexts, prejudice will be easily shown because the circumstances will make prejudice readily apparent.” Id. (citation omitted). B. Motion for Judgment on the Administrative Record (“MJAR”) Bid protests pursuant to 28 U.S.C. § 1491(b) are resolved via motions for judgment on the administrative record, Rule of the Court of Federal Claims (“RCFC”) 52.1(c), a process “properly understood as intending to provide for an expedited trial on the record.” Bannum, Inc., 404 F.3d at 1356. The process is “designed to provide for trial on a paper record, allowing fact- finding by the trial court.” Id. In deciding cross-MJARs, this Court considers “whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence of record.” XOtech, LLC v. United States, 950 F.3d 1376, 1380 (Fed. Cir. 2020) (quoting Palantir USG, Inc. v. United States, 904 F.3d 980, 989 (Fed. Cir. 2018)). C. Mootness Defendant argues its partial corrective action has rendered Count III of Plaintiff’s Amended Complaint moot. Def.’s MJAR at 36–38. RCFC 12(h)(3) requires the Court to dismiss a claim at any time over which it lacks subject-matter jurisdiction. See NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998) (“If a case becomes moot it no longer presents a justiciable controversy over which a federal court may exercise jurisdiction.”). “In general, the Court should dismiss a claim when, during the course of litigation, it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue.” AccelGov, LLC v. United States, 166 Fed. Cl. 606, 610 (2023) (citation modified); see Guardian Moving & Storage Co., Inc. v. United States, 657 F. App’x 1018, 1025 (Fed. Cir. 2016) (granting a government motion to dismiss in a bid protest action). “[T]he government bears the burden of demonstrating that any agency action moots a pending case.” AccelGov, LLC, 166 Fed. Cl. at 610. “The salient question is whether the [agency’s] corrective action has completely and irrevocably eradicated the effects of the alleged violation” of law or the solicitation. McTech Corp. v. United States, 105 Fed. Cl. 726, 731 (2012) (citation modified). 12 IV. Discussion A. Count III of Plaintiff’s Amended Complaint is Moot Because USACE’s Partial Corrective Action Removes Any Potential Prejudice. Despite the Agency’s partial corrective action, see supra Section II.D, Massman continues to press its claim of prejudice by the Agency’s resequencing of work between the Base and Option scopes in Amendment No. 5. Pl.’s MJAR at 31–33. In Amendment No. 5, USACE moved work for the replacement of Gate 5 from the Base scope to Option 1, separating the Gate 7 replacement scope and the Gate 5 replacement scope. Id. at 32. “Based directly on the separation of replacement work between the Base and Option scopes, and on the Solicitation’s representation that options would not be exercised at the time of award, Massman increased its price because separating the replacement work on Gates 7 and 5 resulted in less efficient construction work and increased costs in connection with mobilization of critical equipment necessary to perform the replacement work.” Id. But any argument Amendment No. 5 itself was improper is untimely because parties must “object to solicitation terms during the bidding process.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). Regardless of the merits of Massman’s original contention that USACE was not permitted to exercise options at the time of the award, see Compl. ¶¶ 80–85, the Agency decided to award a new contract without exercising any options. Def.’s MJAR at 36; see Final SSDD at AR 4563–64. Defendant’s corrective procedures “cancelled the agency’s previous decision, rendering it a nullity.” Syneren Techs. Corp. v. United States, 166 F.4th 1040, 1045 (Fed. Cir. 2026). McMillen and Massman were each aware of Amendment No. 5 and raised their prices accordingly. Def.’s MJAR at 38. Massman claims it was “uniquely prejudiced” because the price differential was ultimately dispositive in awarding the Contract to McMillen. Resp. at 23. But Massman simultaneously concedes “the issue on its own may not be dispositive.” Id. And as the Government correctly states, “[b]oth offerors were in the exact same position, with the exact same information available to them.” Def.’s MJAR at 38. Because the Government has met its burden to demonstrate its corrective action cured any prejudice from the alleged violation, Count III of Plaintiff’s Amended Complaint is dismissed as moot. See RCFC 12(h)(3). B. USACE’s “Past Performance” and “Technical Approach” Ratings Had a Rational Basis, but its “Organization” Subfactor Ratings were Inadequately Justified. Massman argues the USACE acted arbitrarily and capriciously when it rated Massman and McMillen equivalently on three evaluation factors: (1) Factor 1 (Past Performance); (2) Factor 2, Subfactor 1 (Technical Approach); and (3) Factor 2, Subfactor 2 (Organization). Pl.’s MJAR at 7. While Massman makes specific arguments as to each of these factors, it argues overall that USACE “smoothed over” the differences between the two proposals in order to 13 ultimately select McMillen’s lower-priced bid.6 Id. at 22. The Solicitation established all other factors (when combined) as significantly more important than price. Tab 30 at AR 303. Massman therefore believes the Agency “downplay[ed]” the strengths of its bid, which allowed cost to become the determinative factor. Pl.’s MJAR at 26 (quoting Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 768 (2008)). As explained, Massman is correct only with regards to the Organization subfactor. 1. Organization Massman argues it should not have received a lower score on the “Organization” subfactor of Factor 2 (Management Approach) because its proposed document control system “is the same system” proposed by McMillen. Resp. at 13; see also Pl.’s MJAR at 30–31. Massman received an “[***]” rating, while McMillen received a “[***]” rating. Def.’s MJAR at 13. In the SSEB evaluation, Massman received one strength to McMillen’s two strengths. Both offerors received strengths related to project organization and reporting structure. Compare Final SSDD at AR 4548 (finding Massman “presents a good approach to project organization, a key factor being the [***]”), with id. at AR 4553 (finding McMillen “presents a good approach to project organization, a key factor being the [***]”). McMillen’s additional strength came from “its approach to quality control utilizing internal document review controls and [a] 3-phase system” the SSEB found to be “very positive” and would “reduce[] performance risk to the Government.” Id. at AR 4553. Defendant incorrectly suggests Massman’s proposal contained only two sentences describing its control system. Def.’s MJAR at 34 (citing Tab 110b at AR 3414). But as Massman points out, it elaborated significantly on this brief description later in its proposal. Resp. at 14 (citing Tab 110b at AR 3424–25). And McMillen’s proposal describes “a three- phase control process with the same phases as Massman’s: preparatory phase, initial inspection, and follow-up inspection.” Pl.’s MJAR at 31 (citing Tab 109a at AR 3246–47). The parties’ two proposals are below: [***] (depicting Tab 109a at AR 3246–47 (McMillen’s Proposal); Tab 110b at AR 3424–25 (Massman’s Proposal)). The similarities in the proposals reveal disparate treatment. The Agency treated Massman’s Organization proposal differently when it is “substantively indistinguishable” from or “nearly identical” to the one in McMillen’s proposal. Off. Design Grp., 951 F.3d at 1372 (citation modified); see also AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 367 (2009) (“[W]here an evaluation scores two virtually identical proposals differently, such an inconsistent evaluation is quintessentially arbitrary, capricious and unfair.”), opinion clarified, 87 Fed. Cl. 654 (2009). 6 This argument is more specifically addressed in Section IV.C infra. 14  Defendant argues Massman’s quality-control approach “did not rise to the same level of demonstrated quality control integration.” Reply at 9 (citing Final SSDD at AR 4561). But the fact that Massman also proposed a three-phase system goes unaddressed. See Final SSDD at AR 4561. The SSA did not explain how “McMillen’s three-phase system is more robust than Massman’s or why McMillen’s system, but not Massman’s, ‘meaningfully reduces performance risk to the Government.’” Resp. at 15 (quoting Final SSDD at AR 4561). The Court must defer to the Agency’s subjective technical judgment, but it cannot defer to judgment that is not there. See IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265, 286 (2022) (stating that while the court will sustain a decision lacking ideal clarity, it “will not put words in an agency’s mouth or invent supporting rationales the agency has not itself articulated in the administrative record”). The SSA also noted another difference between the proposals in his tradeoff analysis: “McMillen’s organizational structure places the [***], ensuring that [***] are not subordinate to forward construction progress.” Final SSDD at AR 4561; see Tab 109a at AR 3244 (displaying McMillen’s proposed organizational chart). In contrast, Massman’s proposed organizational structure placed its [***]. Tab 110b at AR 3426. This distinction is relevant under the Solicitation’s criteria for the Organization subfactor: “[t]he Government will evaluate the clarity and strength of the overall organization and how well it is organized, structured and staffed to execute the entire scope of work.” Tab 30 at AR 315. However, both McMillen and Massman received strengths from the SSEB for their organizational structure because the [***] and [***] roles were not subordinate to the [***] role. Tab 80 at AR 2460, 2464. The SSA might have found that a more direct reporting relationship between these roles and the [***] role was a particular strength and distinction weighing in McMillen’s favor. Final SSDD at AR 4561. But if the SSA did so, he needed to say so. See Golden IT, LLC v. United States, 177 Fed. Cl. 118, 136 (2025) (recognizing that even if “the administrative record doesn’t tend to show that the agency made an error,” the agency may be in violation of the APA where “[its] findings or decisions are conclusory or unexplained in the administrative record” because “the APA requires the government to show its work”). Because both offerors received strengths on this point, the Agency’s path was not “reasonably discernable,” making “explicit explanation” necessary. See DynCorp Int’l, 10 F.4th at 1315. Therefore, because the Agency’s Organization rating disparity was without a rational basis, it was unlawful. 2. Past Performance Both Massman and McMillen received “Very Relevant / Substantial Confidence” ratings on Factor 1. Final SSDD at AR 4560. Massman maintains “[t]he Agency’s overall rating and its statements [in its evaluation of the proposals] do not match and could only be reached by ignoring unambiguous Solicitation language.” Pl.’s MJAR at 22. Massman contrasts the four strengths it received in the initial, revised, and final Past Performance evaluations to McMillen’s one strength alongside two deficiencies and two uncertainties. Id. at 23. But this ignores 15 McMillen’s revised technical proposal that addressed these deficiencies and uncertainties, which the Final SSDD documents. See Final SSDD at AR 4551–52. Similarly, Massman received an initial weakness in Past Performance, which was also resolved by its revised technical proposal. Compare id. at AR 4547 (“Only one of 5 projects submitted [by Massman] was over $25M in final contract value which imparts risk on the Government due to lack of demonstrated experience with large value contracts.”), with id. (resolving this weakness because Massman “provided a short narrative, chart showing the description and value of other recent projects well over $25M, and bonding information from their surety”). Nor was USACE obligated to give Massman a higher Past Performance rating because it received four strengths to McMillen’s one in the final evaluation. It is a maxim of federal procurement law that adjectival ratings do not need to “be added up and ‘averaged out.’” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 909 n.6 (Fed. Cir. 2013); Harmonia Holdings Grp., LLC v. United States, 167 Fed. Cl. 448, 474 (2023) (“The Court . . . will not engage in calculating an agency rating by counting ‘Decreases Confidences,’ . . . because this court has rejected such an approach.”). Rather, “the reason that strengths and weaknesses are identified” is not to quantify them but “to help ensure that evaluations are thoughtful.” Ft. Carson Supp. Servs. v. United States, 71 Fed. Cl. 571, 591 (2006); see also Hyperion, Inc. v. United States, 92 Fed. Cl. 114, 119 (2010) (“The adjectival ratings are merely a guide.”). Here, the Agency determined “McMillen’s individual strength covers seven different aspects of performance, which the SSEB notes ‘demonstrates solid past performance history regarding the significant planning for successful execution of this project.’” Def.’s MJAR at 27 (quoting Tab 83 at AR 2498). Agencies receive what has been called a “triple whammy of deference” when evaluating past performance in a negotiated procurement. Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 351 (2004) (citation modified); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 909 (Fed. Cir. 2013) (affirming past performance rating of “Less than Satisfactory” despite reference ratings of “Satisfactory” or “Better”). Therefore, the Court does not find USACE’s judgment unreasonable. Massman also argues the Agency “improperly considered McMillen’s future technical approach to resolve its primary uncertainty about McMillen’s dearth of past performance.” Pl.’s MJAR at 24 (citing Final SSDD at AR 4551–52). It is true the Final SSDD uses future-tense language in describing the resolution of McMillen’s initial weakness: Uncertainty 2 Offeror fails to demonstrate capability in performing lifts of the size and complexity required for the work described in the solicitation in submitted Past Performance data. 00 22 11, 5.6.2 Response 2 In response to the discussion letter, the offeror provided additional details and information on how lifts for the base contract work will be conducted, including equipment, rigging, subcontractors, and means/methods. 16 Final SSDD at AR 4552 (emphasis added). But this ignores the response McMillen provided to the Agency on this exact weakness: Uncertainty 2 Offeror fails to demonstrate capability in performing lifts of the size and complexity required for the work described in the solicitation in submitted Past Performance data. Reference solicitation 00 22 11, paragraph 5.6.2 McMillen Response: McMillen has included additional details within our previous project descriptions that further highlight the relevant crane barge usage within our past construction projects, which draw comparison to the complex barge lift planning, rigging, and flying of large hydraulic steel gates, structures, and members which are highly relevant to the proposed work on the Webbers Falls Tainter Gate Replacement and Repairs contract. Tab 93d at AR 3033–34 (emphasis added); see also Def.’s MJAR at 25–26 (describing the additional evidence). With this additional context, the SSA’s discussion of McMillen’s “planned approach” is based on the evidence of its relevant past construction work. See DynCorp Int’l, 10 F.4th at 1315 (holding “explicit explanation is not necessary where the agency’s decisional path is reasonably discernable” (citation modified)). The Final SSDD’s language could have been more precise. But given the high level of deference due USACE’s evaluation, the Court finds the Agency’s rating of McMillen’s Past Performance is reasonable and supported by the record. 3. Technical Approach Finally, Massman argues the Agency “improperly equalized Massman and McMillen’s technical approaches when it concluded, without elaboration, that Massman and McMillen were ‘technically equivalent,’ and that the Agency was ‘satisfied that both offerors understand the technical requirements of this solicitation,’ resulting in this subfactor being ‘equal between the two offerors.’” Pl.’s MJAR at 26–27 (quoting Final SSDD at AR 4561–62). Specifically, Massman believes (1) USACE improperly resolved McMillen’s weakness on Factor 2, Subfactor 1 (Technical Approach) because McMillen did not adequately explain how it would acquire the crane necessary for the Contract or relevant letters of commitment, and (2) USACE did not adequately credit Massman for its commitment to self-perform (i.e., performance without using subcontractors) major portions of the project, both of which were preferred criteria in the Solicitation. Id. at 27–29. This argument fails on both grounds. In its final technical proposal, McMillen committed to performing “with its own in-house craft labor forces, all major work elements of this project.” Tab 109a at AR 3239. Defendant correctly notes “[t]he solicitation did not require McMillen to have a signed contract for date and amount certain for the use of the crane and rigging system. McMillen only needed to demonstrate its ‘understanding of the requirements described in the 17 Division 01 requirements and the plans and technical specifications of the Solicitation and the capability to execute the project.’” Def.’s MJAR at 30 (quoting Tab 30 at AR 313). Massman’s contention that McMillen improperly switched its proposed cranes after inquiry from the Agency is therefore without merit. See Tab 137 at 4287; Pl.’s MJAR at 19, 29. Identifying or subcontracting for a specific crane was not a stated requirement, and neither Massman nor the Court can graft such a requirement onto the Solicitation after the fact. Massman also suggests McMillen is actually relying on a subcontractor for the “Marine Construction” phase of the project and, therefore, needed a letter of commitment under the Solicitation. Resp. at 8–9. But it does not point to any language in the Solicitation or elsewhere that prohibits the use of a subcontractor. McMillen’s discussion responses indicate it will rely on a subcontractor’s equipment and personnel in designing the crane lifting plan. See Tab 93d at AR 3041. These responses, however, do not contradict its unambiguous proposal statement that it will “self-perform” the lifting itself. Tab 109a at AR 3239. Massman’s disagreement with the Agency’s resolution of this weakness is not sufficient grounds for this Court to “substitute its judgment for that of the agency.” J.C.N. Const., Inc. v. United States, 107 Fed. Cl. 503, 515 (2012) (citation omitted). The agency has discretion “to determine compliance with the technical requirements” of the project. Ultra Elecs. Ocean Sys. Inc. v. United States, 139 Fed. Cl. 517, 530 (2018). Likewise, the Agency did not err i