UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


J A JONES MGMT SVC

v.

FAA


00-1023a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: A disappointed bidder challenges the  Federal
Aviation Administration's award of a contract. Re- viewing the FAA's
decision pursuant to the highly deferential  arbitrary and capricious
standard, we deny the petition for  review.


I


Following a competitive bidding process, the FAA awarded  Wackenhut
Services, Inc., intervenor herein, a $5 million  contract to provide
operations and maintenance services at  the William Hughes Technical
Center, a 5059 acre facility in  New Jersey that serves as the
national scientific test base for  FAA research, development, and
acquisition programs. Pur- suant to FAA procedures, petitioner J.A.
Jones Management,  an unsuccessful bidder, protested the award to the
agency's  Office of Dispute Resolution for Acquisition ("ODRA"). In 
that protest, Jones claimed both that the agency failed to  follow its
own procedures and that Wackenhut failed to meet  the contract
solicitation's substantive requirements. After  reviewing the evidence
and making factual findings, ODRA  recommended that Jones's protest be
denied. Adopting  ODRA's findings and recommendations, the FAA
Administra- tor issued a final order awarding the contract to


The solicitation required the contract to be awarded to the 
responsible, low-priced offeror deemed acceptable in each of  several
listed technical areas. The agency contracting officer,  assisted by a
contract specialist, oversaw the procurement  decision. As outlined in
the solicitation, an eight-member  Technical Evaluation Board
following a Technical Evaluation 


Plan was responsible for determining whether offers met the  technical
requirements. According to the Plan, if the Board  unanimously decided
that an offer failed in any one area, the  offeror would be
disqualified from further consideration. All  agree that if the Board
was not unanimous, the contracting  officer would retain discretion to
award the contract to the  offeror.


At a July 26, 1999 meeting, the Technical Evaluation Board  unanimously
disqualified Wackenhut, stating in its report that  the company had
failed in two specific areas: demonstrating  how it would remove snow
from the facility and proposing an  electrical engineer with the
required work experience. Re- viewing the Board decision, the contract
specialist discovered  that the individual evaluation sheet of one of
the Board  members--Evaluator F--indicated that he had given Wack-
enhut a passing grade in both areas. In particular, referring  to the
snow removal task, Evaluator F wrote on his scoring  sheet: "I think
this was addressed adequately." When the  contract specialist asked
for an explanation, the Board chair  pointed out that, despite his
individual assessment, Evaluator  F had signed the report
disqualifying Wackenhut in the two  areas. The chair also told the
contract specialist that Evalu- ator F had agreed to change his
individual scoring sheet to  reflect the Board's evaluation. As ODRA
later found, howev- er, Evaluator F failed to do so.


Unsatisfied, the contract specialist arranged a second  Board meeting
to discuss the inconsistency between the  Board report and Evaluator
F's individual scoring sheet. At  that meeting, which occurred on
August 12, Evaluator F  reiterated his belief in the acceptability of
Wackenhut's offer  and refused to change his evaluation sheet. During
a break  in the meeting, Evaluator F, believing that his unwillingness
 to change his assessment of Wackenhut had become an  obstacle to
agreement, telephoned the contract specialist and  asked to be removed
from the Board. The contract specialist  denied his request.


After the break, the chair called the contract specialist to  inform
her that the Board was still discussing Wackenhut's 


proposal. The contract specialist directed the chair to post- pone any
further action until she finished discussing the  matter with the
contracting officer and agency counsel. Dur- ing that discussion, the
three found Wackenhut's offer techni- cally acceptable and decided not
to follow the Board's assess- ment. Learning of this decision, the
chair reconvened the  Board. Under the circumstances, the Board
decided it was  pointless to meet further. The contracting officer
later deter- mined that Wackenhut was the responsible, low-priced
offeror  deemed acceptable in all of the solicitation's technical
areas.  Wackenhut was awarded the contract.


After hearing testimony about these events, ODRA con- cluded that the
contracting officer properly followed agency  procedures in awarding
the contract to Wackenhut. Central  to the dispute in this case, ODRA
found that the Board's  decision had not been unanimous and that
Wackenhut had  therefore not been disqualified. This determination
rested  primarily on the events of the August 12 meeting--in particu-
lar, Evaluator F's continued refusal to agree that Wackenhut  was
unacceptable. At one point in its report, ODRA found  that "[i]t is
undisputed that, at the conclusion of the final  Board meeting on
August 12, the Board, in a non-unanimous  vote, found Wackenhut's
proposal unacceptable." Reviewing  all of the evidence, ODRA concluded
that the meeting "ended  in a non-unanimous Board decision."


Jones, the unsuccessful bidder, now challenges the award of  the
contract to Wackenhut. Jones claims that, contrary to  ODRA's finding,
no non-unanimous vote occurred at the end  of the August 12 meeting.
As Jones views the events of  August 12, the Board reached no decision
at all. Accordingly,  Jones argues, the contracting officer was bound
by the July  26 unanimous disqualification of Wackenhut. Focusing on 
three of the solicitation's technical requirements, Jones also 
challenges the contracting officer's determination that Wack- enhut
was qualified. We consider each claim in turn.


II


We review the FAA's non-unanimity finding under the  familiar arbitrary
and capricious standard. See 5 U.S.C. 


s 706(2)(A). Under this standard, we "may reverse only if  the agency's
decision is not supported by substantial evi- dence, or the agency has
made a clear error in judgment."  Kisser v. Cisneros, 14 F.3d 615, 619
(D.C. Cir. 1994); see also  49 U.S.C. s 46110(c) (FAA "[f]indings of
fact ..., if supported  by substantial evidence, are conclusive.").
Jones fails to  appreciate the result this highly deferential standard
so clear- ly dictates.


Jones argues that the contracting officer lacked discretion  to
disregard the Board's disqualification of Wackenhut. Be- cause Jones
concedes that the contracting officer had dis- cretion to disregard a
non-unanimous Board, its claim nec- essarily turns on its assertion
that the Board was in fact  unanimous. To prevail, Jones must
demonstrate that the  agency's determination to the contrary did not
rest on sub- stantial evidence. Yet as ODRA found, not only did Evalu-
ator F declare Wackenhut acceptable on his individual scor- ing sheet
(which he never altered despite his apparent  promise to do so), but
at the August 12 meeting, he again  refused to change his evaluation.
This evidence is more  than enough to sustain the agency's finding of


Seeking to undermine the agency's decision, Jones argues  that it rests
on an unsupported ODRA factual finding: that  "it is undisputed that,
at the conclusion of the final Board  meeting on August 12, the Board,
in a non-unanimous vote,  found Wackenhut's proposals unacceptable."
The finding  that formal balloting took place at the August 12 meeting
 indeed lacks support in the record. ODRA's error does not  require
reversal, however, for we do not believe that the  agency rested its
decision solely on the existence of a formal  vote. See 5 U.S.C. s 706
("[D]ue account shall be taken of  the rule of prejudicial error.").
As we read ODRA's report,  the agency relied primarily on Evaluator
F's individual evalu- ation sheet and his statements at the August 12
meeting.  Using the word "vote" only twice, ODRA's report repeatedly 
refers to a non-unanimous Board "decision." Moreover, as  Jones's
counsel concedes, neither the agency's procedures nor  the contract
solicitation required a formal vote, so ODRA had 


no reason to consider the existence of a vote significant.  Thus, even
without relying on the existence of a non- unanimous vote, the agency
had adequate support for its  ultimate conclusion that "[t]he August
12 meeting, which was  the last meeting of the Board on the subject,
ended in a non- unanimous Board decision of unacceptability of the
Wacken- hut proposal."


Jones provides little evidence to counter the agency's non- unanimity
determination. Pointing out that the contract spe- cialist cut off the
August 12 meeting in the middle of discus- sion, Jones argues that the
Board reached no decision at all.  While this is certainly one
possible view of what happened at  the meeting, the question we face
is "not whether [petition- er's] view of the facts supports its
version of what happened,  but rather whether the [agency's]
interpretation of the facts  is reasonably defensible." Harter Tomato
Prods. Co. v.  NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998) (internal
quotation  marks omitted). As we demonstrate above, ODRA's non-
unanimity determination finds more than adequate support in  the


III


Jones's remaining claims require little attention. Arguing  that
Wackenhut's offer failed to meet the solicitation's sub- stantive
requirements, Jones urges us to reverse the agency's  final contract
award. Where a procurement decision requires  an agency to assess an
offeror's qualifications to perform a  contract, our review is
"especially deferential." See Iceland  S.S. Co., Ltd.-Eimskip v.
United States Dept. of the Army,  201 F.3d 451, 461 (D.C. Cir. 2000).
We are particularly  reluctant to second-guess agency decisionmaking
on these  " 'delicate questions.' " Elcon Enters., Inc. v. Washington 
Metro. Area Transit Auth., 977 F.2d 1472, 1479 (D.C. Cir.  1992)
(quoting Delta Data Sys. Corp. v. Webster, 744 F.2d  197, 203 (D.C.


Jones first claims that Wackenhut failed to satisfy the  solicitation's
past performance provisions, which required ex- perience managing a
facility of similar size, i.e., with "over 60 


employees and/or over $5 million per year." The FAA found  that
Wackenhut met this requirement, based in part on its  experience
managing a correctional facility with sixty work- ers, including
forty-four inmates. Jones contends that the  agency erred in
considering the inmates to be employees.  But as the agency found, the
inmates were employees be- cause they were both paid and supervised by
Wackenhut.  Given our especially deferential standard of review, we
cannot  imagine a basis for overturning the agency's judgment on this 
issue. Nor do we find any reason to credit Jones's unsup- ported
assertion that Wackenhut's experience managing a  correctional
facility was not the type of experience the solici- tation required.


Jones next argues that the FAA was not entitled to award  the contract
to Wackenhut because the company failed to  include in its offer a
copy of its proposed Environmental  Specialist's license. By providing
that such a failure "may"  render the proposal ineligible, however,
the solicitation left  the agency with discretion to award the
contract to a bidder  whose offer omitted the required license.


Equally without merit is Jones's final claim that the agency  was not
entitled to award the contract to Wackenhut because  its offer
contained rEsumEs of key personnel whose consent  had not been
obtained. Relying again on our highly deferen- tial standard of
review, we find no basis for disturbing  ODRA's judgment that the
rEsumEs were submitted in good  faith.


IV


The petition for review is denied.


So ordered.