BEAN STUYVESANT, L.L.C., Plaintiff, v. The UNITED STATES, Defendant, NATCO Limited Partnership, Intervenor-Defendant, 48 Fed. Cl. 303

OPINION BUSH, Judge. This is a post-award bid protest in which plaintiff, Bean Stuyvesant L.L.C. (“Bean”), seeks to enjoin the United States Army Corps of Engineers (the “Corps”) from rejecting its proposal for a beach renourishment and shore protection project in Sunny Isles and Miami Beach, Florida.

Bean protests the Corps’ award of the contract to the intervenor, NATCO Limited Partnership (“NATCO”), because the Corps failed to: (1) consider Bean’s lower price in making a competitive range determination; (2) hold discussions with Bean prior to arriving at an award determination; and (3) properly evaluate Bean’s proposal under the Request for Proposal (“RFP”). This matter is currently before the court on plaintiffs motion for a permanent injunction and declaratory judgment; on defendant’s and intervenor’s oppositions thereto; and on the parties’ cross-motions for

summary judgment on the administrative record. I. BACKGROUND A. Facts On or about July 6, 2000, the Jacksonville, Florida District Office of the Corps issued Solicitation No. DACW17-00-R-0025, entitled “Modifications to Sunny Isles Segment and Beach Renourishment at Miami Beach, Shore Protection Project, Dade County, Florida.” The solicitation required the contractor to dredge the sand from an offshore borrow area and to place it on the beach at Sunny Isles, Florida to create a widened beach berm. It also required the contractor to construct an offshore breakwater to protect the beach.

In addition, the solicitation contained an option item for the placement of beach fill at the 63rd Street area of Miami Beach. The Independent Government Estimate (“Government Estimate”) of performing both the base contract and the option item was $15,496,000.

The Corps determined that, for this procurement, it would use competitive negotiation procedures that evaluate factors other than price, rather than sealed bidding procedures where price is the only factor, because it was essential to evaluate the offeror’s technical qualifications given the environmental sensitivity and restrictions surrounding this project. Both the advertisement for this project in the Commerce Business Daily and the Description of Work of the solicitation stated that “[protection of the environment, especially the existing reef system, is of paramount importance.” AR 20, 487a. 1.

Work to be Performed The solicitation included a detailed description of work to be performed under the terms of the contract. These provisions, which were incorporated as part of the contract upon award, are replete with instructions and requirements concerning hardbot-tom/reef protection.

Section 01410, captioned “Environment Protection”, covers prevention of environmental pollution and damage due to construction operations and the measures listed in other Technical Requirements. AR 352. Paragraph 3.1.4.11, titled “Hardground/Reef Protection”, states that existing hard-ground/reef areas would be designated and that the contractor “shall install all protection for these resources” to preserve them “as they existed at the time they were pointed out to the Contractor.” AR 369. The paragraph also instructs that pipelines should be placed only in approved areas and any leaks, particularly over the hard-ground/reefs should be repaired immediately. Other paragraphs of this

section also refer to the protection of other environmental resources, such as manatees and sea turtles. AR 356, 367 (Paragraphs 3.1 and 3.1.4.8, named “Protection of Environmental Resources” and “Sea Turtle Monitoring”, respectively).

Section 02391, designated “Beach Fill”, governs, among other things, how equipment is used while performing the operations connected with the excavation, transportation and placement of beach fill on the beaches. The Corps dedicates over three pages of this

section to the protection of the hardbot-tom/reef communities and sets forth several requirements the contractor must fulfill to that end. AR 468-471; 451-471. At the forefront, it requires the contractor, within seven days after the Notice of Award and prior to equipment mobilization, to submit a Nearshore Hardbottom Protection Plan. AR 452. The contractor must also submit a precondition survey report of the hardbot-tom/reef communities and the Operational Box (the vicinity of the proposed pumpout location field) after receiving the Notice to Proceed. AR 453. The

section also requires the contractor to monitor the hardbot-tom/reef communities at the pumpout operation area on a weekly basis, provide weekly reports on the condition of these resources in the vicinity of the Operational Box and, after removal of the equipment from the Operational Box, to submit a post-condition survey report of hardbottom/reef communities. AR 453-54; 469-70.

Section 02391 imposes specific requirements on the contractor to protect the hard-bottom/reef resources in the borrow area, and the Operational Boxes outside and inside of the pipeline access corridor. AR 464-65, 468-71. This

section requires the contractor to use a hopper dredge to excavate beach fill from the designated borrow areas. AR 464. The contractor must sail the loaded hopper dredge from the borrow area to the Operational Boxes and hook up to a pipeline (or a booster pump and pipeline) to pump sand to the beach. AR 468. With regard to the borrow area, the contractor may not encroach on the hardgrounds by anchors, cables, or dragheads because “marine hardgrounds occur parallel to both the east and west sides of the borrow areas.” AR 464.

Contract Drawings 4/1 and 4/2, provided with the solicitation, identify the Corps’ information regarding the location of the reefs and hardbottoms near the borrow areas and state that “[t]he borrow areas have been located to have a 400-foot buffer zone from the hardbottom/reef communities.” Despite the Corps’ identification of the hardbottom/reef areas, the contractor must use divers, prior to dredging, to “determine the exact locations and condition of the marine hardgrounds adjacent to the borrow area.” AR 464.

Paragraph 3.2.1 also limits the contractor’s dredging methods in the borrow area “[t]o minimize the concentration of sedimentation on the adjacent hardground/reef areas.” AR 464. In addition, the solicitation states that the Dade County Department of Environmental Resources Management (“DERM”) would monitor the hardbottom/reef resources in the vicinity of the borrow area to determine whether the contractor’s dredging activities created sedimentation and stress. AR 465.

Contract Drawings 54 and 1)4 also indicate the known hardbottom/reef communities located in close proximity to the Operational Boxes the contractor uses for pumpout operation. Paragraph 3.3.1 of

Section 02391 states that although the boundaries of the Operational Boxes were designed to be at least 150 feet away from known hardbot-tom/reef resources, the contractor must verify the existence of these resources in the Operational Boxes prior to placement of equipment, such as anchors, pilings, spuds, etc., to ensure that the hardground resources would not be impacted. AR 468-69. Paragraph 3.3.2 and subsequent subpara-graphs govern “Protection of Hardbottom Areas Within the Identified Pipeline Corridors”. AR 470-471.

Contract Drawings }4 and 1)4 identify the locations of the pipeline corridors and the hardbottom/reefs they cross. Paragraph 3.3.2.1 prohibits the contractor from using floating pipeline, within the pipeline corridor, to traverse the hard-bottom/reef communities and requires that the contractor place submerged pipeline in a manner that minimizes, to the greatest extent possible, impact to the hardbottom. AR 470. Paragraph 3.3.2.4 dictates the contractor’s placement of the pipeline to ensure minimal contact to the hardbottom/reef habitat. Id.

Paragraph 3.3.3 requires diver inspections of the pipeline and its connections to prevent leaks that could damage the surrounding environment. AR 471. In addition,

Section 02278, entitled “Stone Protection” in connection with breakwater construction, also addresses protection of hardbottom/reef resources. Paragraph 3.4.3 requires the contractor to have certified divers to assist in the placement of anchors, spuds, or temporary piling to ensure that the anchoring methods do not occur near the hardbottom/reef areas. AR 432. 2. Requirements of Submitted Proposals —

Section 00100 The solicitation requested submission of proposals by August 31,

Section 00100, designated “Instructions to Bidders”, provided offerors with Source Selection Information. AR 37-55. Paragraph 1.1 of

Section 00100, in pertinent part, states: The Government intends to make award without discussions and without giving of-ferors an opportunity to revise their offers; therefore, offerors are encouraged to include their best terms and conditions (both price and technical) in their initial offer. The Government reserves the right to conduct discussions if the Contracting Officer later determines them to be necessary. By submitting an offer in response to this solicitation, offerors are agreeing to comply with all terms and conditions contained in the solicitation. AR 37.

Paragraph 2 stated that each offeror’s proposal would include an oral presentation. It also required that the written proposal would consist of two packages. The first package had to include the offeror’s contractual documentation, including price schedule, subcontracting plan, and past performance materials. The second package was to contain the offeror’s written documentation to be used at the oral presentation. Id. Paragraph 5.1 of

Section 00100 stated the basis for award based upon the oral presentation and written materials. AR 41. It states, in relevant part: Award Basis. Award will be made to the offeror whose proposal represents the best value to the Government. Best value will be determined by a trade-off process that combines non-price and price factors. The Government reserves the right to award to other than the offeror with the highest technical rating and reserves the right to award to other than the offeror with the lowest price. Non-price factors are slightly more important than price. Non-price factors will be evaluated on a point system. Award will be made on a 1000-point scale____ Id. Paragraph 3 of

Section 00100 sets forth the requirements for the oral presentations. It states, in relevant part, the following: 3. ORAL PRESENTATIONS. In addition to the written proposal, each offeror shall make an oral presentation at a time to be specified at a later date. The purpose of the oral presentation is to give the offeror an opportunity to make the Government’s evaluators aware of the offeror’s qualifications.... The oral presentation shall follow this outline: 3.3. Technical Approach. 3.3.1. Ability to Complete all Work in Compliance with the Environmental Criteria.

The offeror shall describe the proposed technical approach for executing the work in accordance with the Plans and Specifications. The proposal shall include a description of how the plant and equipment to be used will not impact the adjacent environmental resources throughout the entire project area. Potential impacts could include turbidity, sedimentation, and mechanical damages. If anchors are to be used, it must be proven that impacts to adjacent environmental resources will not occur. Chaffing of pipelines cannot be allowed if there is a possibility of damage to adjacent environmental resources.

The of-ferors [sic] proposal must be in compliance with the Plans and Specifications. The objective should be to instill confidence that the offeror thoroughly understands the requirements and complexities of this project, and that the offeror has developed a well thought out plan that integrates all related activities. All examples describing similar type experience must come from the projects to be addressed later in the presentation under past performance. 3.3.1.1. Describe Method for Extraction of Material from Borrow Area Without Damaging the Environmental Resources.

It is not unusual for waves that are three feet high and above to occur in the project area; therefore, a detailed description of how plant and equipment to be used and the method of accomplishing the work in rough weather is needed. 3.3.1.2. Describe Method for Transferring Material from Dredge to Placement Area Without Risking Damage to Environmental Resources due to Equipment Utilized Outside the Pipeline Access Corridor.

It is not unusual for waves that are 3 feet high and above to occur in the project area, therefore a detailed description of how plant and equipment to be used and the method of accomplishing the work in rough weather is needed. Include details on mobilization, installation, operation and demobilization. Indicate the sea condition that will necessitate the removal of the equipment and the contingency plan for this. 3.3.1.3. Describe Method for Transferring Material from Dredge to Placement Area Without Risking Damage to Environmental Resources due to Equipment Utilized Inside the Pipeline Access Corridor.

It is not unusual for waves that are 3 feet high and above to occur in the project area, therefore a detailed description of how plant and equipment to be used and the method of accomplishing the work in rough weather is needed. Include details for installing and removal of the pipeline, buoys and dredging equipment. 3.3.1.4. Describe Method of Placement and Quality Control for Construction of Breakwater in Open Shallow Water and Rough Wave Environment in Area Surrounded in Close Proximity to Important Environmental Resources.

It is not unusual for waves that are 3 feet high and above to occur in the project area, therefore a detailed description of how plant and equipment to be used and the method of accomplishing the work in rough weather is needed. Include details for mobilizing, mooring and anchoring equipment and methodology to construct the breakwater. 3.4. Past Performance. From the list of contracts provided with the written proposal, select the 3 most recent and similar contracts and present a synopsis of each. The synopsis must cover the sub factors listed below.

It is preferred that the 3 contracts selected represent all sub factors, but, if more contracts are required to show similar experience, up to 2 additional contracts per factor may be chosen. Similar projects are defined as projects that involved open ocean dredging of sand around environmental resources that were required to be protected and constructing breakwaters in shallow water in a rough wave environment.

In selecting similar past performance, the offeror may include its performance, the performance of predecessor firms, the performance of subcontractors, and the performance of key employees of the offeror and proposed subcontractors. 3.4.1. Description of Project. Describe the project and explain how it is similar to this project. Similarity need not be established for all the sub factors; however, the less similarity the offeror is able to establish, the less points will be allowed by the Government’s evaluators. 3.4.1.1. Compliance with Environmental Criteria.

Describe the environmental resources that were required to be protected and any problems encountered and how those problems were solved. Paragraph 4 of

Section 00100 sets forth the rules for making presentations. It provides, in relevant part: 4. RULES FOR THE ORAL PRESENTATION. 4.3. Limitations on Government-offeror interaction during and after the presentation. The Government’s representatives will not interrupt the presentation (except to ask for a repeat of a passage that may not have been heard the first time). During the Q & A sessions, the Government’s representatives will ask questions to obtain clarification of any information presented by the offeror. Price will not be discussed at any time during the oral presentation process.

The Government will not provide feedback regarding the quality of the of-feror’s presentation. (In accordance with FAR subpart 15.5, offerors may request a debriefing at the appropriate time.) 4.5. Time. The presentation will proceed as follows: H« H« sfc H* The offeror will be allowed 2 hours for the presentation of the Management Plan, Technical Approach and Past Performance. The 2 hours may be used at the offeror’s discretion between the 2 presentations. The 30 minute wrap-up session will not be included in the 2 hours.

At the conclusion of each presentation, the offeror’s representatives will be asked to leave the room and the Government’s evaluators will meet for no more than 15 minutes to discuss the presentation and develop any questions the Government may wish to ask. At the conclusion of the Government’s meetings, the offeror’s representatives will be asked to return to the room to answer questions. The Q & A sessions will last for no more than 30 minutes. 4.6. Presenters..... The management plan and past performance portions of the presentation must be presented by the of-feror’s project manager.

For major items of subcontracted work (e.g., the breakwater) and for subcontractor past performance, the offeror may use the subcontractor’s project manager as the presenter____ 4.7. Government participants. The Government will be represented by approximately 10 persons (including the contracting officer ...) Paragraph 5 of

Section 00100 sets forth the “Proposal Evaluation Procedures.” AR 41. 5. PROPOSAL EVALUATION PROCEDURES 5.1. Award Basis, [paragraph recited, supra] 5.2. Evaluation Process. The evaluation process will proceed as follows: 5.2.1. Written Evaluation Process. The Government will review the offeror’s written proposal as to adherence of the requirements of the plans and specifications. Evaluation of the subcontracting plan and past performance will be based on a 175-point scale. Government Estimate Comparison.

If any offered price, exceeds the IGE by more than 25%, send the abstract (with names of offerors removed) to the Cost Estimating Branch and request verification of the IGE. After the accuracy of the IGE is verified (and, if necessary, the IGE is revised), eliminate from further consideration any offer (including the award fee) that exceeds the IGE by more than 25%. (In accordance with EFARS 36.205, the Government cannot award a contract at a price that exceeds the IGE by more than 25%.) (Note: This step presumes there will be no negotiations as defined at FAR 15.306(d).

Should the Contracting Officer determine that negotiations are necessary, offerors who have been eliminated by this step may be included in the competitive range and receive further consideration.) Hs H« ❖ H* H« H« Past Performance. Using the list provided by the offeror and information gathered from other sources, the Government will select 3 projects for past performance review. The Government will contact project owners and ask questions regarding: (

i) compliance with environmental criteria, (ii) quality control, (iii) compliance with safety standards, (iv) responsiveness to customer’s needs, (

v) timeliness, (vi) subcontracting goals and subcontractor coordination/control, and (vii) cost control of change order work. The evaluation will be based on a 125-point scale. The Government may select for past performance review all, some, or none of the same 3 projects the offeror presents in its oral presentation____ 5.2.2. Oral Evaluation Process. The Government will evaluate the offeror’s oral presentation for clarity, completeness, thoroughness and reasonableness. The evaluation will be based on a 825-point scale with points assigned to each sub factor as follows: 5.2.2.1. Management Plan. 200 points further broken down as follows: B. Performance

Schedule — 50 points C. Safety Program and Plan — 50 points D. Quality Control Organization and Plan — 50 points E. Organizational Chart and Plan for Performing the Work — 25 points F. Cost Controls for Change Order Work — 25 points 5.2.2.2. Technical Approach.

Ability to Complete all Work in Compliance with the Environmental Criteria — 500 points further broken down as follows: • Method for Extraction of Material from Borrow Area Without Damaging Environmental Resources — 85 points • Detailed Description of Method of Accomplishing the Above in Seas 3 Feet High and Above — 40 Points • Method for Transferring Material from Dredge to Placement Area Without Risking Damage to Environmental Resources due to Equipment Utilized Outside the Pipeline Access Corridor — 85 points • Method of Transferring material from dredge to placement area "without risking additional environmental impacts due to equipment utilized inside the pipeline access corridor — 85 points • Method of Placement and Quality Control for Construction of Breakwater in Open Shallow Water and Rough Wave Environment in Area Surrounded by Close Proximity to Important Environmental Resources — 85 points 5.2Ü.3.

Past performance ... — 125 points further broken down as follows: • Compliance with Environmental Criteria — 25 points }■{ :¡< sj: The Source Selection/Evaluation Plan repeats the language from Paragraphs 3, 4, and 5 of

Section 00100. AR 1656-1662. It also describes the criteria the evaluators must use to judge the proposals and provides a separate description for each subfactor. AR 1667-1686. In addition, the solicitation incorporates FAR 52.217-5, titled “Evaluation of Proposals”. This provision states: (

a) Except when it is determined in accordance with FAR 17.206(

b) not to be in the Government’s best interests, the 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). AR 49. 3. Submitted Proposals On August 31, 2000, NATCO and Bean submitted their proposals. AR 1637, 1649. NATCO’s price for the total contract was [ ]. Id; AR 1639. This amount was approximately [ ]% above the Government Estimate for the base contract plus the option. See AR 490. Bean’s proposed price for the entire contract was [].

AR 947; 1637; 1649. This amount was below the Government Estimate. Bean and NATCO made their oral presentations on September 6 and 7, 2000, respectively. Id The Corps videotaped each oral presentation. a. Bean’s Oral Presentation and Evaluation Bean’s oral presentation followed the format set forth in Paragraph 4.5 of

Section 00100. See AR 41. However, Aneil Taylor, the Vice President — General Manager for Bean, rather than Bean’s proposed project manager for this project, made the main oral presentation on behalf of Bean. The evaluation team deducted twenty (20) points from Bean’s Management Plan score because of Bean’s failure to comply with the solicitation’s requirement that the project manager present the management plan and past performance portion of the presentation. After answering the evaluator’s questions regarding its Management Plan, Bean presented its Technical Approach to the project.

Bean Videotape 0:56:33 to 1:28:30. Of the seven slides Bean submitted for its Technical Approach, two had narrative text mentioning hardbottom/reef protection. AR 1022-1029; 1026; 1028.[], the representative for Bean’s subcontractor, [], discussed hardbottom/reef monitoring during this portion of the presentation. AR 1007-1009; See Bean Videotape 0:56:33 to 1:28:30. Mr. [] spent approximately ten minutes discussing in detail the written plan submitted by Bean for hardbot-tom/reef monitoring, which addressed several paragraphs of the solicitation relating to hardground/reef monitoring.

Bean Videotape id.; AR 1013-1020. Mr. Taylor followed Mr. [ ]’s brief presentation and discussed extracting and transferring the sand. At the beginning of his portion of this presentation, Mr. Taylor stated that he recognized that reef habitat is important to South Florida and that Bean would document information to get this project accomplished with environmental concerns in mind. He then addressed each technical specification in the solicitation. Mr. Taylor did not specifically explain how Bean would protect the hardbottom. Instead, Mr.

Taylor discussed how Bean would use the equipment to extract and transfer sand, the use of turtle excluder devices, and environmentally safe dye. Mr. Taylor also generally referred to the “sensitive area”, stating that Bean would not mobilize/demobilize equipment in the sensitive area and would not allow equipment, such as wires or cables, to drag into the sensitive area. Bean Videotape 0:56:33 to 1:28:30. [] from [], Bean’s subcontractor for construction of the breakwater, made a brief, approximately three minute, presentation regarding the breakwater construction. Bean Videotape 1:21:13 to 1:24:30.

Mr. [] did not discuss whether [ ] was capable of performing in seas above three feet; however, he addressed this issue when questioned by the evaluators. Id. Bean’s Technical Approach portion of the oral presentation was approximately 32 minutes. Bean Videotape 0:56:33 to 1:28:30. Following Bean’s Technical Approach presentation, Bean discussed its past performance. Bean Videotape 1:28:31 to 1:52:45. Mr. Taylor addressed three projects that Bean believed were similar to the current project.

Of the three projects, the Canaveral Project had required exact placement of pipeline along the sea bottom to the placement area and the Boca Raton Project, which Mr. [] addressed, required avoidance of a series of reefs and for the equipment to work harmoniously with the sensitive area. Id. After Bean’s presentations of its Technical Approach and Past Performance, the Corps evaluation team asked Bean ten questions regarding both presentations. Bean Videotape 1:53:07 to 2:11:06; AR 1507-09. None of the questions specifically concerned environmental protection of the hardbottom or coral reefs. Id.

However, one question asked Bean to “Clarify the performance of dredging in waffle pattern in the borrow area to minimize turbidity and sedimentation impacts to surrounding reefs.” AR 1507. In response, Mr. Taylor focused on protection of sea turtles and how the dragheads, trenches and program lines would operate. Bean Videotape 1:53:07 to 2:11:06. Following Bean’s entire oral presentation, the evaluators scored Bean’s proposal. Each individual evaluator arrived at his or her own score for Bean in each of the specified areas and all of the evaluation team members met and reached a consensus score for Bean.

Bean’s Management Plan received a score of 140 out of a possible 200 points. In that arena, Bean only objects to the evaluators’ twenty point deduction for Bean’s failure to have the project manager present its oral presentation, in accordance with Paragraph 4.6 of

Section 00100. Bean’s Technical Approach received the following scores: AR 1346. The Corps summarized its findings of Bean’s oral technical presentation in an undated document entitled “Best Value Technical Assessment”, Appendix D of the Source Selection Determination. AR 1708-1712. With regard to Bean’s Technical Approach score, that document states the following: Bean Stuyvesant, L.L.C. received 280 points out of a maximum of 500 points for this factor.

Due to the environmental concerns and complexity of the work, Bean Stuyvesant’s oral presentation demonstrated a lack of understanding the purpose of the oral presentation. They did not assure the Corps that they understood the environmental risks and showed little detail of how they would handle them. Bean Stuyvesant spoke more about sea turtles protection, which is a relatively minor concern in the project area, and hardly mentioned hardbottom protection, which is a major concern.

Bean Stuyvesant’s Technical Plan only received an outstanding rating for being able to work in 4 to 5 foot seas at the borrow site and inside and outside the pipeline corridor. AR 1709. The Best Value Technical Assessment document also states that Bean received 115 points out of a possible 125 for its Past Performance discussion during its oral presentation and 114 out of a possible 125 points for its Past Performance record as determined by contacting Bean’s disclosed references. AR 1709. Bean does not challenge its own oral Past Performance rating.

However, Bean does object to the Corps’ failure to divulge [], the breakwater construction subcontractor, poor past performance record. [] received a total of [] points out of a possible thirteen for its Past Performance evaluation. AR 1347. The Corps determined that the subcontractor lost points on nearly every evaluation factor, including Compliance with Environmental Criteria, Quality Control, Safety, Responsiveness, and Timeliness. AR 1624-1626; 1710. Bean earned 36 of 50 points for its subcontracting plan. AR 1710. Bean’s non-price score totaled 685 points out of a possible 1000. AR 1346^7.

According to the source selection plan, a score of 685 points means that the “[pjroposal demonstrates shallow understanding of requirements and approach that only marginally meets performance or capability standards necessary for minimal but acceptable contract performance.” AR 1666. b. NATCO’s Oral Evaluation Presentation and NATCO’s presentation, like Bean’s, followed the format set forth in Paragraph 4.5 of

Section 00100. AR 41. During NATCO’s presentation of its Management Plan, NAT-CO repeatedly discussed its concern for protecting the hardbottom/reef areas, including the topic in its [] portions of the presentation. NATCO Videotape 0:26:29 to 0:28:40; 0:43:02 to 0:45:50. NATCO submitted [ ] slides relating to its Technical Approach. AR 641-725. At least [] of these slides discuss hardbottom/reef communities or chaffing of the ocean floor. AR [ ]. Throughout its presentation, NATCO addressed protection of the hardbottom/reef communities and other environmental concerns. NATCO Videotape 0:57:18 to 2:01:40.

Specifically, NATCO stated that its focus was hardground protection, minimizing turbidity and sedimentation that can impact hard-ground area, and endangered species such as sea turtles, manatees, and whales. NATCO referred to protection of the hardground area more thoroughly in its discussions of its [ ]. Id. [], NATCO’s breakwater construction subcontractor, made an approximately 24 minute presentation on the construction of the breakwater. NATCO Videotape 1:37:20 to 2:01:40.

Mr. [ ], among other things, stated that his company wanted to ensure that the hardbottom areas were not impacted by the project and that it could work in seas greater than three feet. NATCO Videotape 1:58:20 to 2:01:40. NATCO’s Technical Approach presentation lasted approximately 63 minutes. The evaluation team gave NATCO the following scores for its Technical Approach: AR 1055. The Best Value Technical Assessment stated, with regard to NATCO’s Technical Approach, that: NATCO was rated outstanding in every factor but one on their Technical Presentation.

NATCO’s oral presentation demonstrated a full understanding of the purpose of the presentation. NATCO’s presentation assured the Corps they understood the environmental risks and thoroughly discussed, in great detail, how they would handle the risks. The only factor NATCO received a satisfactory rating was Construction of Breakwater. NATCO’s subcontractor is only able to work in 3-foot seas not 4 to 5 foot seas and they did not present their Severe Weather Contingency Plan. NATCO also lost points inside and outside the pipeline access corridor for not discussing: 1.

Visual inspections of pipeline when divers could not dive due to weather. 2. The disposal of rock at the rock disposal area. 3. Assuring that cables and buoys do not chaff any environmental resources inside and outside the pipeline corridor. AR 1711. As with Bean, NATCO’s evaluation report is based on the findings of the individual evaluators. See e.g., AR 1115-16, 1120-21, 1206-07, and 1211. The evaluators’ comments included three comments noting NATCO’s weakness in discussing potential hardground impacts as a result of cable drags by buoys attached to pipe, propwash and boat draft. AR 1165-66; 1170; 1253-54.

Following NATCO’s Technical Approach presentation, NATCO discussed its Past Performance. NATCO Videotape 2:01:40 to 2:21:10. NATCO addressed why it encountered problems with the hardbottom areas on a previous job at the subject location and its solution to the problems. NATCO Videotape 2:13:48; AR 784. The Corps had given NATCO an award for Contractor of the Year in the South Atlantic Division in 1997. NAT-CO Videotape 0:07:55; AR 544. The company had also won an award for its approach to a sensitive environmental problem in Boston Harbor. AR 545; NATCO Videotape 0:08:10. In an evaluation

summary of NAT-CO’s past performance based upon the three projects provided by NATCO, the Corps gave NATCO an overall outstanding rating. It noted that on a project at the same location as the subject project, although NATCO had some problems complying with the environmental criteria, due, in part, to differing site conditions, it created a solution for the problems and worked well with the agencies involved to mitigate any impact to environmental resources. AR 1343. On this same project, NATCO’s subcontractor, [ ], received a satisfactory evaluation for its construction of an artificial reef. Id.

The evaluation team deducted five points from NATCO’s oral Past Performance score because of its failure to comply with environmental criteria involving “surfside cable drag.” AR 1091. NATCO’s score totaled 939 points out of a possible 1000. AR 1055-56. According to the source selection plan, a score of 939 points means that the “[pjroposal demonstrates excellent understanding of requirements and approach that significantly exceeds performance or capability standards. Has exceptional strengths that will benefit the Government.” AR 1666. 4.

Agency Responses to Proposals On September 21, 2000, Claudia Hundley, the contracting officer (“CO”), made a competitive range decision. AR 1637. The first paragraph of the memorandum for the Determination of the Competitive Range, states the proposed prices for each of the offerors’ proposals. Id. The memorandum also states: 3. Appendix B of the approved Source Selection Plan provides a numerial [sic] definition for an overall point rating.

Utilizing this rating system, Bean Stuyvesant L.L.C.’s evaluation points of 685 indicate the following: Proposal demonstrates a shallow understanding of requirements and approach that only marginally meets performance or capability standards necessary for minimal but acceptable contract performance. Bean Stuyvesant failed to adequately address the solicitation requirements and a significant revision of the proposal would be required. In which case, the government would be put in the position of leading the offeror to a solution or approach, which is unfair to the other offerors. 4.

It is my determination, that, based on the above, a total score [sic] 685 points eliminates Bean Stuyvesant from the competitive range, leaving NATCO as the only offeror in the competitive range. Id. This same day, Ms. Hundley, in a letter essentially reiterating the Determination of Competitive Range memorandum, notified Bean that it was excluded from the competitive range. AR 1714. On September 21, 2000, Ms. Hundley also contacted NATCO, via letter, to inform NAT-CO that its proposal was within the competitive range. The letter also stated that, in accordance with

Section 00100, Paragraph 1.1 of the solicitation, which contained a reservation of rights for the Government to open up discussions if it determined them to be necessary, she had determined that discussions were necessary and opened up discussions with NATCO. Ms. Hundley stated that as NATCO’s proposed price was considered at “the high end of the scale”, it was being afforded an opportunity to submit a revision of its price. AR 1640. NATCO responded with a revised price of $18,212,263.00. AR 1641-43. This amount was approximately 17.5% above the Government Estimate.

The agency awarded the contract to NATCO on September 26, 2000. AR 1715-20. The Source Selection Determination memorandum, dated September 26, 2000, in pertinent part, states: 9. COMPETITIVE RANGE DETERMINATION. Review of the technical points and proposed prices revealed Bean Stuyvesant with the lowest price and yet points that indicated a shallow understanding of the technical requirements per

definitions provided .... Bean Stuyvesant did not adequately address the solicitation requirements and a significant revision of the proposal would be required, thereby, putting the Government in the position of leading the offeror to a solution or approach to the project if negotiations were entered into with the firm. On the other hand, NATCO Limited Partnership had points indicating an excellent understanding of the technical requirements and a price approximately [] above the Government Estimate. A decision was made by the Contracting Officer to open discussions.

In accordance with FAR 15.306(c), a competitive range determination was made, eliminating Bean Stuyvesant from the competitive range based on their low technical score, leaving NATCO as the only offeror within the competitive range. 5s< í¡« # 10. AWARD. jfc tfc # ❖ ❖ Bean Stuyvesant’s oral presentation demonstrated a significant lack of understanding as to the purpose of the oral presentation. They did not assure the Corps that they understood the environmental [sic] risks and showed little detail of how they would handle them.

Bean Stuyvesant spoke more about sea turtle protection, which is a relatively minor concern in the project area and hardly mentioned hard-bottom protection, which is a major concern. An important indicator which significantly demonstrated the firm’s lack of understanding of the care that must be taken to ensure that no damage occur to the environmental resources was their selection of their subcontractor for construction of the breakwater.

The subcontractor’s past performance documented an unacceptable past performance record in areas of environmental compliance, quality control and responsiveness to customer’s needs, which, in effect, would increase the risk of damage to the environmental resources if the contract were awarded to Bean Stuyvesant.

Even though the price submitted by Bean Stuyvesant was less than the Government Estimate, [] less than NATCO’s original proposed price and [ ] less than NATCO’s revised price, the lack of demonstrated technical experience in their proposal and their failure to indicate any understanding of the significance of protection of the environmental resources would make award to the firm unacceptable regardless of their price. NATCO’s technical score reflects a complete understanding of not only the technical requirements of the job, but also the overriding significance of protecting the environmental resources.

Their presentation instilled the highest level of confidence in the Technical Evaluation Team as well as the Contracting Officer that they had a well thought-out plan to prevent damage to the environmental resources. It is therefore determined that an award will be made to NATCO Limited Partnership which represents the best value to the government. AR 1648-52. By letter dated September 25, 2000, Bean requested a post-award debriefing and on October 3, 2000, Bean was given a debriefing by the CO. B.

Procedural History On October 6, 2000, Bean filed the present case, seeking a temporary restraining order (“TRO”), preliminary and permanent injunctions enjoining the Corps from continuing performance under the subject contract, and declaratory relief nullifying the contract awarded to NATCO and compelling the Corps to place Bean in the competitive range.

In its complaint, Bean asserts that the Corps’ decision to award the contract to NATCO was arbitrary and capricious, lacking a rational basis, contrary to procurement law and regulation, and a breach of the Corps’ implied contractual duty to fairly and honestly evaluate Bean’s proposal because the Corps: (1) excluded Bean from the competitive range although its proposal was deemed to be “acceptable” and without considering Bean’s lower proposal price; (2) failed to properly evaluate Bean’s proposal by treating “hardbottom protection” as a significant factor when it was not listed as a significant factor or subfactor in the solicitation; (3) deducted points from Bean’s Management Plan portion of its oral presentation when the solicitation did not provide a basis for such a deduction; (4) failed to give Bean an opportunity to respond to the Corps’ concerns regarding Bean’s coverage of “hardbot-tom protection” in its oral presentation; and (5) failed to give Bean an opportunity to respond to the Corps’ findings of adverse past performance information regarding Bean’s breakwater subcontractor, [ ].

By order dated October 17, 2000, pursuant to a telephone conference with the parties, a TRO was not issued in this matter pursuant to the Government’s agreement that it would suspend performance under the contract until November 15, 2000. Cross-motions for

summary judgment on the administrative record have been filed and are currently pending. Oral argument was held on November 3, 2000. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1491(b)(1) and may grant Bean appropriate relief, “including declaratory and injunctive relief,” if this court finds in its favor. Id. § 1491(b)(2). II. DISCUSSION A. Standards of Review 1. Cross-motions for

Summary Judgment In deciding cross-motions for

summary judgment upon the administrative record pursuant to Rule 56.1 of the Rules of the Court of Federal Claims (“RCFC”), this court treats the motions the same as a motion for

summary judgment under RCFC 56. Chas H. Tompkins Co. v. United States, 43 Fed.Cl. 716, 719 (1999) (citing Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997)).

Summary judgment is properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). The moving party bears the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H.

Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)). A fact is material if it may affect the outcome of the suit under the substantive law governing the action. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. All doubt over factual issues must be resolved in favor of the party opposing

summary judgment. Mingus, 812 F.2d at 1390. However, the non-moving party has the burden of producing sufficient evidence that there is a genuine issue of material fact in dispute which would allow a reasonable finder of fact to rule in its favor. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Such evidence need not be admissible at trial; nevertheless, mere denials, conclusory statements or evidence that is merely colorable or not significantly probative is not sufficient to preclude

summary judgment. Celotex, 477 U.S. at 324, 106 S.Ct. at 2548; Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2505; and Mingus, 812 F.2d at 1390-91. When the court is presented with cross-motions for

summary judgment, each motion must be evaluated on its own merits, under the

summary judgment standards set forth above, and the court is not required to find

summary judgment for either party simply because cross motions were filed. Analytical & Research Tech., Inc. v. United States, 39 Fed.Cl. 34, 43 (1997) (citations omitted). Nevertheless, this court has found that “[a] motion for

summary judgment upon the administrative record, or for

summary judgment, is an appropriate vehicle to scrutinize an agency’s procurement actions because the issues are matters of contractual and regulatory

interpretation.” Id.; Tompkins, 43 Fed.Cl. at 719. 2. Review of Record in Bid Protest Cases In a bid-protest matter, a court must not set aside an agency’s procurement decision and grant injunctive or declaratory relief unless it is shown to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A) (1994); 28 U.S.C. § 1491(b)(4).

In considering whether an agency’s actions have been arbitrary or capricious, this court must consider, under the four factors set forth by the United States Court of Claims, whether: (1) “there was subjective bad faith on the part of the procurement officials;” (2) the procurement decision had a reasonable basis; (3) the procuring officials abused their discretion; and (4) the procuring officials violated pertinent statutes or regulations. Cube Corp. v. United States, 46 Fed.Cl. 368, 375 (2000) (citing Keco Indus., Inc. v. United States, 203 Ct.Cl. 566, 574, 492 F.2d 1200 (1974); Southfork Sys., Inc. v.

United States, 141 F.3d 1124, 1132 (Fed.Cir.1998); Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 676-77 (1997); Aerolease Long Beach v. United States, 31 Fed.Cl. 342, 355-56 (1994), aff'd, 39 F.3d 1198 (Fed.Cir.1994)); Unified Architecture & Eng’g, Inc. v. United States, 46 Fed.Cl. 56, 62 (2000) (citations omitted). However, “ ‘there is no requirement or implication ... that each of the factors must be present in order to establish arbitrary and capricious action by the government.’ ” Antarctic Support Assocs. v. United States, 46 Fed.Cl. 145, 154 (quoting Prineville Sawmill Co. v.

United States, 859 F.2d 905, 911 (Fed.Cir.1988)). This court has also stated that to determine that a protestor has prevailed under the arbitrary and capricious standard, the offeror must establish that (1) the procurement decision was not supported by a rational or reasonable basis, or (2) the procurement process showed a “clear and prejudicial violation of applicable statutes and regulations.” Synet-ics, Inc. v. United States, 45 Fed.Cl. 1, 5 (1999) (citing Logicon, Inc. v. United States, 22 Cl.Ct. 776, 782 (1991); Central Ark. Maintenance, Inc. v.

United States, 68 F.3d 1338, 1342 (Fed.Cir.1995)); Ellsworth As-socs., Inc. v. United States, 45 Fed.Cl. 388, 392 (1999) (citations omitted); Day & Zim-mermann Servs. v. United States, 38 Fed.Cl. 591, 597 (1997) (citations omitted). “A protestor must prove the arbitrary and capricious nature of the Government’s actions or the violation of an applicable procurement regulation by a preponderance of the evidence.” T & S Products, Inc. v. United States, 48 Fed.Cl. 100, 104 (2000) (citing CACI Field Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed.Cir.1988); Ellsworth, 45 Fed.Cl. at 392; R.R.

Donnelley & Sons, Co. v. United States, 38 Fed.Cl. 518, 521-22 (1997); PCI/RCI v. United States, 36 Fed.Cl. 761, 767 (1996)). In addition, the violation of a statute or regulation must be clear and prejudicial. Beta Analytics Int’l, Inc. v. United States, 44 Fed.Cl. 131, 136 (1999) (citing Central Ark. Maintenance, Inc., 68 F.3d at 1342 (citation omitted)). However, to establish prejudicial error, although a protestor must demonstrate that the error in the procurement process was “significant”, the protestor is not required to show that but for the agency’s alleged error, it would have been awarded the contract.

Instead, the protestor need only show that, had it not been for the alleged error in the procurement process, “‘there was a substantial chance it would have received the contract award.’ ” Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (1999) (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581-82 (Fed.Cir.1996); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996); citing CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983)).

It is well-established that when determining whether a government agency acted with a rational or reasonable basis in making a procurement decision, including its evaluation of bids and application of procurement regulations, courts afford agencies wide discretion. Analytical, 39 Fed.Cl. at 42 (citing Bellevue Bus. Serv., Inc. v. United States, 15 Cl.Ct. 131, 133 (1988); CACI Field Servs., Inc. v. United States, 13 Cl.Ct. 718, 725 (1987), aff'd, 854 F.2d 464 (Fed.Cir. 1988)); Candle Corp. v. United States, 40 Fed.Cl. 658, 663 (1998) (citing Lockheed Missiles & Space Co., Inc. v.

Bentsen, 4 F.3d 955, 958-59 (Fed.Cir.1993)); E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.Cir. 1996) (citation omitted). This deference is particularly great when a negotiated procurement is involved and is greater still when the procurement is a “best value” procurement. Cubic Defense Systems, Inc. v. United States, 45 Fed.Cl. 450, 458 (1999) (citing Delbert Wheeler Constr., Inc. v. United States, 39 Fed.Cl. 239, 247 (1997), aff'd, 155 F.3d 566 (Fed.Cir.1998); Cincom, 37 Fed.Cl. at 671-72; FAR 15.605(c); TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed.Cir.1996); E.W. Bliss, 77 F.3d at 449).

Moreover, in situations where the court must “review technical matters that are within the agency’s expertise, the highest degree of deference is warranted.” Id. (citing G.E. Gov’t Servs., Inc. v. United States, 788 F.Supp. 581, 590 (D.D.C.1992)). Courts grant such broad discretion because of the “strong presumption that government officials act correctly, honestly, and in good faith when considering bids.” Analytical, 39 Fed.Cl. at 42 (citing Cincom, 37 Fed.Cl. at 671). Accordingly, this court must not substitute its judgment for that of the agency as long as the agency’s decision is grounded in reason.

Id.; Synetics, 45 Fed. Cl. at 5 (citations omitted). This holds true even if “reasonable minds could reach differing conclusions.” Analytical, 39 Fed.Cl. at 42 (citing IMS Servs., Inc. v. United States, 33 Fed.Cl. 167, 179-80 (1995); Health Sys. Mktg. & Dev. Corp. v. United States, 26 Cl.Ct. 1322, 1326 (1992)). However, although the discretion given to agencies extends to the contracting officer’s establishment of the competitive range, when the government official establishes a competitive range of one offeror, the decision is subject to close scrutiny. Impresa Construzioni Geom. Domenico Garufi v.

United States, 44 Fed.Cl. 540, 553 (1999) (citing Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970, 974 (Fed.Cir.1993)); W & D Ships Deck Works, Inc. v. United States, 39 Fed.Cl. 638, 643 (1997). Moreover, the court, as required by the APA, must conduct a “‘thorough, probing, in-depth review' of the agency’s action to determine ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Antarctic, 46 Fed.Cl. at 154 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

Thus, the court must determine whether the agency, pursuant to the Competition in Contracting Act (“CICA”), specified its needs and solicited proposals “in a manner designed to achieve full and open competition for the procurement.” 10 U.S.C. § 2305(a)(1)(A) (1994). See also 41 U.S.C. § 253(a)(1)(A). Consequently, an agency must assess a competitive proposal “ ‘solely on the factors and subfactors specified in the solicitation.’ ” Candle Corp., 40 Fed.Cl. at 663 (quoting 48 C.F.R. §§ 15.305(a), 12-602(b) — (c) (1997); 10 U.S.C. § 2305(b)(1) (1994)). See also E.W.

Bliss, 77 F.3d at 449 (stating that courts will examine an agency’s evaluation “to ensure that it was reasonable and consistent with the evaluation criteria” as well as the applicable statutes and regulations). 3. Injunction Standard If a plaintiff demonstrates that a procurement was unlawful, the issue then before the court is whether to grant permanent injunctive relief.

To gain a permanent injunction, plaintiff must establish: (1) actual success on the merits; (2) that it will suffer irreparable injury if injunctive relief were not granted; (3) that, if the injunction were not granted, the harm to plaintiff outweighs the harm to the Government and third parties; and (4) that granting the injunction serves the public interest. Hawpe Constr., Inc. v. United States, 46 Fed.Cl. 571, 582 (2000) (citations omitted); Ellsworth, 45 Fed.Cl. at 393 (citation omitted).

To establish that preliminary injunctive relief is necessary, a plaintiff must only demonstrate “a likelihood of success on the merits” as opposed to actual success on the merits, in addition to the other three factors required for a court to grant a permanent injunction. Delbert Wheeler, 39 Fed.Cl. at 251 (citations omitted). B. Merits 1. Evaluation of Hardbottom Protection as a Significant Subfactor Plaintiff contends that the solicitation not only failed to indicate that hardbottom protection was a factor or subfactor, but that it also failed to set forth the significance of hardbottom protection as such.

Plaintiff thus concludes that the Corps’ evaluation of hardbottom protection as a significant evaluation subfactor was arbitrary, capricious and not in accordance with the applicable statutes and regulations. Both the CICA and the Federal Acquisition Regulations (“FAR”) require the agency to evaluate competitive proposals solely on the basis of the factors specified in the solicitation. 10 U.S.C. § 2305(b)(1) (1994); 48 C.F.R. § 15.305(a). The FAR extends this requirement to the agency’s evaluation of subfactors as well. 48 C.F.R. § 15.305(a).

Accordingly, a solicitation must clearly state all significant factors and sub-factors as well as their relative importance. 10 U.S.C. § 2305(a)(2)(A)(

i) and (ii); 48 C. F.R. § 15.304(d). In the absence of a statement of the relative importance of the factors or subfactors, each factor or subfactor must be weighed equally. Isratex, Inc. v. United States, 25 Cl.Ct. 223, 229 (1992) (citations omitted). These requirements echo the “fundamental principle that the Government ‘may not solicit proposals on one basis and make award on another basis.’” Dubinsky v. United States, 43 Fed.Cl. 243, 266 (1999) (citing Clean Fl., Inc., 88-2 C.P.D. ¶ 411 at 2 (1988); Idaho Norland Corp., 88-1 C.P.D. ¶ 529 at 3, reconsideration denied, 88-2 C.P.D. ¶ 103 (1988)).

Consequently, this court may grant an offeror relief if the offer- or establishes that the agency evaluated the proposal on a basis different than that announced in the solicitation and that the offer- or was prejudiced as a result. Hydro Eng’g, Inc. v. United States, 37 Fed.Cl. 448, 471 (1997) (citing CACI Field Servs., Inc. v. United States, 13 Cl.Ct. 718, 728 (1987), aff'd, 854 F.2d 464 (Fed.Cir.1988)). In support of its argument, Bean points out that

Section 00100 of the solicitation does not specifically reference hardbottom protection as a significant concern or make a distinction among the various environmental resources the Corps seeks to protect. Plaintiff is correct in this assertion.

Section 00100 fails to specifically state the words “hardbottom/reef protection”, particularly under the Technical Approach paragraphs or the Oral Evaluation of the Technical Approach paragraphs. Nevertheless, this court has found that “ ‘a solicitation need not identify each element to be considered by the agency during the course of the evaluation where such element is intrinsic to the stated factorsf.]’ ” T & S Products, Inc., 48 Fed.Cl. at 105 (quoting Analytical & Research Tech. v. United States, 39 Fed.Cl. 34, 45 (citation omitted)); ITT Fed’l Servs. Corp. v.

United States, 45 Fed.Cl. 174, 187, n. 20 (1999) (citation omitted); Forestry Surveys and Data v. United States, 44 Fed.Cl. 493, 497 (1999) (stating “[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.’ ” John Cibinic Jr. & Ralph C. Nash Jr., Formation of Government Contracts 830 (3rd ed.1998) (citation omitted)). Such is the case here.

Section 00100, “Instructions to Bidders”, does not specifically refer to “hardbottom protection” as a subfactor under the Technical Approach factor of the solicitation. However, it is evident, when looking at the solicitation as a whole, that “hardbottom protection” is a subfactor of the solicitation. First, the Description of Work of the solicitation states that hardbottom/reef protection is important to the Corps. Second, the contract drawings mark the known hardbot-tom/reef communities and their proximity to the Operational Boxes. See, e.g., Contract Drawings 1/4 and 11/2.

Third, paragraph 3.3.1, under the Instructions to Bidders, requires offerors to describe their proposed technical approaches for executing the work in accordance with the plans and specifications without risking damage to environmental resources. By reference, potential offer-ors are thus required to look to

Section 01410, entitled “Environmental Protection”, which sets forth explicit requirements for hardbottom/reef protection under paragraph 3.1.4.11, entitled “Hardground/Reef Protection”. Paragraph 3.1.4.11 further refers of-ferors to

Section 02391, entitled “Beach Fill”, which sets forth several pages of requirements for hardbottom/reef protection plans and monitoring. Significantly, in oral argument, as well as in its briefs, NATCO explained that

Section 00100, Paragraph 3.3.1 implicitly refers to “hardbottom protection.” In relevant part, paragraph 3.3.1 states: The proposal shall include a description of how the plant and equipment to be used will not impact the adjacent environmental resources throughout the entire project area. Potential impacts could include turbidity, sedimentation, and mechanical damages. If anchors are to be used, it must be proven that impacts to adjacent environmental resources will not occur. Chaffing of pipelines cannot be allowed if there is a possibility of damage to adjacent environmental resources. AR 39.

In support of its contention, NATCO states: These references to anchors and pipeline chaffing in paragraph 3 apply directly to protection of hardbottom/reef resources, not to manatees or sea turtles. In fact, these provisions tie directly into the hard-bottom/reef protection requirements of

Section 02391, which require the Contractor ‘to ensure that anchors are placed so that there is no potential for the anchor to be pulled over hardground resources’ and require that the contractor’s pipeline ‘provide minimal pipe contact with the hard-bottom/reef habitat.’ Intervenor’s Reply 9 (citing AR 469-70). See also Tr. 68:18 to 72:5. This court finds NATCO’s assertion persuasive, particularly since Bean has failed to present any argument that would effectively rebut NATCO’s contention.

This court also finds it difficult to believe that Bean, as an admittedly experienced dredging contractor, was unaware that these details, if not an explicit reference to hardbottom/reef protection, at the very least provide implicitly that hardbottom/reef protection is a concern of the Corps’ in this procurement. Moreover, plaintiff, in its oral presentation, referenced “hardbottom protection”, thereby reflecting some degree of recognition on plaintiffs part. Thus, although

Section 00100 does not explicitly state that “hardbottom protection” is a subfactor in the solicitation, in light of the above and the principle that, when interpreting a solicitation, this court “must give reasonable meaning to all parts of the [solicitation] and not render portions of the [solicitation] meaningless”, this court finds that “hardbottom protection” is a sub-factor of the Technical Approach concerning protection of environmental resources and that plaintiff was on notice that it was a subfactor. See Allied Tech. Group, Inc. v.

United States, 39 Fed.Cl. 125, 138 (1997) (stating that courts interpret solicitations essentially in the same manner as contracts) (citations omitted). Since hardbottom/reef protection has been established as a subfactor of the solicitation of which plaintiff had notice, the court must turn its attention to whether Bean was on notice of the significance the evaluators would place on this subfactor.

With regard to this issue, plaintiff submits that nothing in the evaluation criteria put it on notice that hardbottom protection would be singled out by the evaluators as a significant subfactor or that plaintiffs proposal would be significantly downgraded because of its treatment of this subfactor in its oral presentation. In support of this contention, Bean states that not only did

Section 00100 fail to indicate that hardbottom protection was a major concern, neither did the contract drawings nor

Section 01410 of the solicitation. Specifically, Bean maintains that, although the contract drawings indicate the hardbottom/reef areas, Contract Drawings 4/1 and 4/2 show that the borrow area is located 400 feet from the hardbottom/reef resources, and Contract Drawing indicates that the loading area is far from the hardbot-tom/reef communities. Bean concludes that these drawings demonstrate that actual construction would not take place near the hard-bottom/reef communities, although the pipeline corridor would have to cross some reef areas. Bean contrasts these conclusions with another

interpretation of the contract documents, stating that the contract drawings indicated other environmental concerns in the borrow area, such as water turbidity and marine life, which Bean did discuss in its presentation. Bean also points out that

Section 01410, designated “Environmental Protection”, only refers to hardground protection in ten lines. Plaintiffs argument, however, is without merit. A review of the record demonstrates that hardbottom/reef resources was of predominant importance in this procurement. From its inception, the Corps indicated that protection of hardbottom/reef resources was a primary concern. As stated, both the Commerce Business Daily and the Description of Work of the solicitation stated that “[protection of the environment, especially the existing reef system, is of paramount importance.” AR 20, 487a.

No other environmental concern is singled out by the Description of Work in such emphatic terms. The predominant importance of the reef communities can be found when the aforementioned language is compared to both documents’ references to sea turtles. With regard to sea turtles, the documents state: “It is anticipated that this project may be constructed during the turtle-nesting season and precautions will have to be taken.” Id.

This language is relatively lackluster when compared to the language regarding reef systems and, taken together, the sentences reflect that while sea turtles are an environmental concern, protection of the reef system, which includes the hardbottom, is most important to the Corps. Furthermore, Sections 01410, 02391, and 02278 of the RFP are replete with references to the hardbot-tom/reef resources and instructions to the potential contractor on how to protect and monitor these communities. Although Bean correctly points out that

Section 01410, has only ten lines that are specifically dedicated to hardground/reef protection, plaintiff overlooks the fact that at the end of the paragraph, the reader is directed to

Section 02391, designated “Beach Fill”. AR

Section 02391 is abundant with references to hardbottom/reef communities. There are several pages devoted to requirements the contractor must meet to protect these resources. The importance of this matter is further demonstrated by the specificity of the paragraphs. For example,

Section 02391 directs the contractor not to simply protect the hardbottom resources, but also how to use the proper equipment, such as hopper dredges, anchors, cables, or dragheads, to that end and to monitor its equipment usage to prevent damaging the resources. Bean seeks to refute these findings by stating that, although it admits that the Description of Work states that protection of the reef system is of paramount importance, the proposals were not being evaluated against either the Description of Work or the other cited RFP provisions, but, rather, against the evaluation factors in

Section 00100. While it is true that

Section 00100 set forth the evaluation procedures for the proposals and the instructions to offerors on how to present their proposals, this court must look at the RFP in its entirety to ascertain the intent of the parties. Allied, 39 Fed.Cl. at 138. Accordingly, this court, as well as the parties, must construe the solicitation “ ‘so as to harmonize and give meaning to all its provisions.’ ” Id. (quoting Thanet Corp. v. United States, 219 Ct.Cl. 75, 82, 591 F.2d 629, 633 (1979); ITT Arctic Servs., Inc. v. United States, 207 Ct.Cl. 743, 751-52, 524 F.2d 680 (1975); accord Firestone Tire & Rubber Co. v.

United States, 195 Ct.Cl. 21, 30, 444 F.2d 547, 551 (1971)). See also Stra-tos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed.Cir.2000) (stating that the solicitation must be read like any contract, “in light of its purpose and consistently with common sense.”) (citation omitted). Consequently, both the Description of Work and the previously cited RFP provisions are relevant to this matter and demonstrate that the Corps put offerors on notice that hardbottom/reef resources were of significant importance.

See T & S Products, Inc., 48 Fed.Cl. at 105-06 (noting that numerous provisions throughout the solicitation on branding were sufficient to put offer-ors on notice that the agency would view branding as a significant issue in its evaluation). In fact, the cited provisions of the solicitation indicate how integral protection of the hardbottom/reef community is to the project. Nearly every action of the equipment is governed so as not to damage these resources.

When a subfactor is so intertwined with other elements of the solicitation, it would be difficult to ignore that an offeror was on notice of its crucial significance. See Antarctic Support Associates v. United States, 46 Fed.Cl. 145, 155-56 (2000) (noting that the IT/Communications factor was an overriding aspect of the proposal and part of the integrated whole, thus, offerors were on notice that they needed to address it in then-proposals).

In light of the above, this court finds not only did the Corps disclose that hardbot-tom/reef protection was a subfaetor, the Corps also provided plaintiff with notice that hardbottom/reef protection was a significant subfactor that would carry pivotal weight in the Corps’ evaluation of plaintiffs proposal. As such, the Corps’ decision to evaluate the proposals on how significantly or in-depth an offeror discussed hardbottom/reef protection in its oral presentation was reasonable and rational. 2.

Evaluation of Bean’s Technical Approach Bean contends that the Corps improperly scored its proposal under the Technical Approach. Specifically, Bean claims that there is no rational explanation for the Corps’ consensus scores for the factors relating to: (1) transference of material from the dredge to area inside the pipeline corridor; (2) transference of material from dredge to area outside the pipeline corridor; and (3) description of breakwater construction.

With regard to all three of these factors, Bean also submits that the consensus scores in these areas are anomalous when one notes that Bean received a higher score on the related subfactor of its method of accomplishing each of these tasks in seas three feet and above. In support of its contention, plaintiff relies upon the well-established proposition that an agency must articulate “a rational connection between the facts found and the choices made.” Antarctic, 46 Fed. Cl. at 154 (citing Baltimore Gas & Elec. Co. v.

Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); NKF Eng’g, Inc. v. United States, 9 Cl.Ct. 585, 594 (1986), order vacated on other grounds, 805 F.2d 372, 378 (Fed.Cir. 1986) (citing Overton Park, 401 U.S. at 416, 91 S.Ct. 814)); Redland Genstar, Inc. v. United States, 39 Fed.Cl. 220, 231 (1997) (citations omitted); Eng’g and Computation, Inc., B-261658, 95-2 C.P.D. ¶ 176 at 3 (Oct. 16,1995). With respect to consensus scoring, defendant has submitted the Declaration of George Cooper, Chair of the Technical Evaluation Team (“TET”), in connection with this proposal.

Defendant has presented this declaration in an effort to answer plaintiffs questions and explain the Corps’ rationale in making the consensus score decisions. In addition, defendant has filed supplemental materials further explaining the Corps’ internal procedures governing consensus scores, in response to this court’s request during oral argument. The declaration of Mr. Cooper explains the TET’s consensus scoring process: a.

The individual evaluators determined an initial score on each Technical Approach subfactor based on the slides and other information presented by the offerors during their oral presentations. b. The TET then met as a group following the conclusion of each offeror’s oral presentation and discussed the scoring of each of these subfactors and reached a consensus score on each subfactor. c. As a result of the discussions at this meeting, some of the individual evaluators revised their initial scores on certain sub-factors.

Examples can be found by comparing individual evaluator score sheets (AR at 1403, 1440, 1568, 1609) to the

summary of individual and consensus scores found at AR 1346. d. Each evaluators’ final individual scores on the eight subfactors under the Technical Approach factor are reflected in the

summary tables of individual evaluation and consensus scores. AR at 1055 (NAT-CO) and 1346 (Bean Stuyvesant). Def.’s Opp., Cooper Dec. at H 4. The agency procedures governing consensus score determinations prohibit the use of averaging to arrive at a consensus score. Specifically, the Army Federal Acquisition Regulation Supplement (“AFARS”), at § 15.305(a)(3), states: Technical evaluation. Do not average or otherwise manipulate individual evaluator or unit scores to produce a single raw score or subfactor. Establish scores by evaluator consensus and not by vote.

When divergent evaluations exist, and none of the evaluators have misinterpreted or misunderstood any aspects of the proposals, consider providing the SSA with written majority and minority opinions. Def.’s Supp. Materials, attachment 1. The Army Material Command Pamphlet, in addition to prohibiting the averaging of individual evaluation results to constitute a consensus, defines consensus as requiring “a meeting of the minds on classifications, deficiencies, strengths, weaknesses, and risks.” Id., attachment 2.

The GAO has rendered decisions in a long line of cases that address the issue of improper evaluation of proposals and whether such is evidenced by consensus scores differing from individual evaluator ratings. This court finds these cases instructive and well-reasoned and will follow their rationale in the resolution of this issue. These Comptroller General cases reflect that the mere fact that a consensus score may deviate from the agency’s individual evaluators’ scores, does not, per se, render the final consensus rating questionable.

In Symtech Corp., the Comptroller General explains the reasoning behind this proposition: Agency evaluators may meet to discuss the relative strengths and weaknesses of proposals, as was done here, in order to reach a consensus rating, which often differs from the ratings given by individual evaluators, since such discussions generally operate to correct mistakes or misperceptions that may have occurred in the initial evaluation. Resource Applications, Inc., B-274943.3, Mar. 5, 1997, 97-1 CPD ¶ 137 at 5.

The overriding concern in the evaluation process is that the final scores assigned reasonably reflect the actual merits of the proposals, and not that they be mechanically traceable back to the scores initially given by the individual evaluators. Symtech Corp., 2000 WL 1277971, *5 (Comp. Gen.) (Aug. 21 2000). See also Ocean House Builders, B-283057, 99-2 CPD ¶ 53 at 4 (Sept. 21, 1999); Warvel Products, Inc., B-281051.5, 99-2 CPD ¶ 13 at 11 (July 7, 1999).

The GAO further explains, in Dual, Inc., that “even if the final consensus ratings were not agreed to by each individual evaluator, this would not provide a sustainable basis of protest in the absence of a showing that the final ratings did not accurately reflect the merits of the proposal.” Dual, Inc., B-252593.3, 93-2 CPD ¶ 190 at 7-8 (Aug. 31, 1993). Thus, the primary issue before this court is whether the consensus scores for plaintiffs proposal reasonably reflect the merits of plaintiffs oral presentation on its Technical Approach.

To appropriately and efficiently address this issue, the court will combine Bean’s consensus argument with Bean’s contention that its oral presentation was improperly downgraded since Bean did address hardbottom protection in its oral presentation and accompanying written materials. Plaintiff defends its position by pointing out that at its oral presentation, [], a representative of plaintiffs subcontractor, [], discussed hardbot-tom/reef monitoring in detail.

Plaintiff also asserts that if the Corps had any questions regarding plaintiffs coverage of hardbot-tom/reef protection in its presentation, the Corps could have simply raised this concern during the obligatory question and answer session. Plaintiff received a score of 280 points out of a possible 500 points for the Technical Approach portion of its oral presentation. Plaintiff challenges the consensus scores that effectively reduced its score by 180 points. The Corps set forth its rationale for its decision in both the Best Value Technical Assessment document, and the Source Selection Determination memorandum.

The Best Value Technical Assessment document states: Bean Stuyvesant, L.L.C. received 280 points out of a maximum of 500 points for this factor. Due to the environmental concerns and complexity of the work, Bean Stuyvesant’s oral presentation demonstrated a lack of understanding the purpose of the oral presentation. They did not assure the Corps that they understood the environmental risks and showed little detail of how they would handle them.

Bean Stuyvesant spoke more about sea turtles protection, which is a relatively minor concern in the project area, and hardly mentioned hardbottom protection, which is a major concern. AR 1709. It also states that plaintiff lost points for the following reasons: 1. Pipeline — Failure to discuss mobilization/demobilization, installation, mooring, and maintenance of pipeline. 2. Pipeline in access corridor — Failure to discuss coordination with DERM for placement of pipeline including buoy placement and care to assure there are no cable chaffing on hardbottom. 3.

Breakwater — Failure to discuss coordination with DERM for site investigation for placement of spuds. Failures to discuss equipment draft, prop wash and care to assure there are no cable drag on hardbottom. Failure to discuss excavation of material at breakwater site. Id. The Source Selection Determination document stated, in relevant part: Bean Stuyvesant’s oral presentation demonstrated a significant lack of understanding as to the purpose of the oral presentation. They did not assure the Corps that they understood the environmental [sic] risks and showed little detail of how they would handle them.

Bean Stuyvesant spoke more about sea turtle protection, which is a relatively minor concern in the project area and hardly mentioned hard-bottom protection, which is a major concern. An important indicator which significantly demonstrated the firm’s lack of understanding of the care that must be taken to ensure that no damage occur to the environmental resources was their selection of their subcontractor for construction of the breakwater.

The subcontractor’s past performance documented an unacceptable past performance record in areas of environmental compliance, quality control and responsiveness to customer’s needs, which, in effect, would increase the risk of damage to the environmental resources if the contract were awarded to Bean Stuyvesant. AR 1651. The Corps’ findings are supported by the record.

Throughout the written materials created by [ ] and submitted as part of plaintiffs written materials accompanying its oral presentation, [ ], in the seven pages that discussed Technical Approach, focused almost exclusively on monitoring (as opposed to protecting) the hardbottom/reef resources. AR 1013-20. Mr. []’s oral presentation on [ ]’s Technical Approach plan lasted approximately ten minutes and he addressed many of the same issues as presented in [ ]’s written materials. Mr. [] also stated that he recognized that there are sensitive reefs near the borrow area and operational boxes.

Bean Videotape 0:56:33 to 1:28:30. a. Transference of Dredge Material to Area Inside the Pipeline Access Corridor For the subfactor, “Transfer of Material Dredge to Area — Inside”, Bean received only 20 points out of a possible 85. AR 1346. Plaintiff claims that the record is void of any explanation for how this consensus score was reached, given the evaluators’ individual scores of 70, 20, 30, 30, 65, and 40. Bean also contends that this matter raises further questions when one considers that one of the evaluators indicated plaintiffs final consensus score for this subfactor would be 65 points rather than 20.

A review of the administrative record reveals the reasoning behind the evaluators’ consensus score. The evaluation sheet states that plaintiff received a score of 20 points because “no discussion of buoy cable impacts, coordination with DERM for placement of pipeline in corridor.” AR 1373. The individual evaluation that plaintiff questions, despite its references to the strengths of Bean’s proposal, states, under the category “weaknesses/significant weaknesses and deficiencies,” that there was “no description of mooring of pipe, connectors”, among other things. AR 1535-36.

Moreover, the other evaluators’ comments mirror this individual evaluator’s notations. The TET’s comments include notations that Bean did not discuss buoy cable impacts, coordination with DERM for placement of pipeline in the corridor, and prevention of cable scrapes from buoy cables along the pipeline, and removal of collars or cable impacts. Two of the evaluators designated plaintiffs failures as deficiencies and significant weaknesses for these failures.

Given the appropriate significance the evaluating team placed on the offeror’s description of how the placement and maintenance of the equipment would affect the hardbottom, it is not unreasonable that Bean’s failure to discuss these matters, as indicated by both the individual evaluation sheet and the oral presentation videotape, would result in a consensus score of 20 points. In the oral presentation, although Mr.

Taylor, like Mr. [ ], stated that he recognized that reef habitat is important to South Florida and that plaintiff would document information to accomplish the project with environmental concerns in mind, he did not go into any explicit detail of how the equipment would be used in a manner to protect the hardbottom. b. Transference of Material to Dredge Area Outside the Pipeline Access Corridor For the subfactor transferring material to the dredge area outside the pipeline access corridor, the TET gave plaintiff a consensus score of 35 points.

The individual evaluators gave plaintiff three scores of 30 points and three scores of 40 points. Plaintiff challenges these individual scores and the resulting consensus score because the administrative record shows that evaluators [ ] and [ ], gave plaintiff an initial score of 40 and 50 points, respectively, whereas their final evaluation

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