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


MULTIMAX INC

v.

FAA


99-1515a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: The Federal Aviation Administra- tion ("FAA")
awarded a contract to Multimax, Inc. ("Multi- max"), but reversed its
decision after an unsuccessful bidder,  Informatica of America, Inc.
("Informatica"), protested the  award to FAA's Office of Dispute
Resolution for Acquisition  ("ODRA"). ODRA found the contract award to
Multimax to  be "without a rational basis and contrary to the
[required  procurement] evaluation criteria." The FAA Administrator 
issued a final order adopting ODRA's findings and recommen- dations to
terminate Multimax's contract and hire Informatica  to complete the
contract. On appeal, Multimax contends that  ODRA applied the wrong
standard of review, that its key  findings of fact are unsupported by
substantial evidence, and  that its disregard of evidence was
arbitrary and capricious,  resulting in an abuse of discretion and a
decision contrary to  law. We deny the petition for review.


I.


On May 11, 1999, the FAA announced a solicitation for bids  on a
contract to provide information technology support ser- vices at the
William J. Hughes Technical Center (the "Cen- ter"), a New Jersey
facility for research, development, and  testing of aviation
programs.1 The solicitation informed pro-




__________

n * Senior Judge Silberman was in regular active service at the  time
of oral argument.


1 The FAA's Acquisition Management System was developed in  response to
Congress' directive "notwithstanding the provisions of  Federal
acquisition law," to provide for more timely and cost- effective
acquisitions of equipment and materials. 49 U.S.C.  s 40110(d) (West,
WESTLAW through P.L. 106-274, approved  Sept. 22, 2000). ODRA is a
review body that was created pursuant 


spective bidders that their proposals would be subjected to a  "best
value" evaluation-a type of bidding process in which  "combined
technical criteria are more important than price."  Thus, the
solicitation stated that "the successful offeror may  not necessarily
be the [one providing the] lowest priced  offer," but also advised
that "[p]rice may become more impor- tant as the difference between
competing technical scores  decrease[s]."


At the Center, a five-member Technical Evaluation Team  (the "TET"),
chaired by Dennis Steelman, evaluated the  contract proposals. After
the TET eliminated non- competitive proposals, four offerors remained,
including In- formatica and Multimax. The TET considered and ranked 
the proposals according to five factors: (1) Management 
Plan/Technical Approach; (2) Key Personnel; (3) Oral Pre- sentation;
(4) Staffing Plan; and (5) Past Performance. The  offerors were also
required to submit a price proposal, sepa- rately from their technical
proposal, about which the TET  was not supposed to learn or take into
account until its  technical report was completed. By late August
1999, the  TET had reached a consensus that Informatica had provided 
the "technically superior offer," and recommended that Infor- matica
be awarded the contract. Informatica had scored  about three and a
half points higher than its closest competi- tor on TET's combined
evaluation, and its proposal was the  only one ranked "excellent" (the
other three fell into the  "good" range).


The TET reported to the Integrated Products Team (the  "IPT"), which
consisted of Dennis Steelman and Anne Marie  Ternay. The IPT was
responsible for completing a Technical  Evaluation Report and an Award
Recommendation and De- termination. On Friday, August 27, 1999,
Steelman submit- ted an initial version of the Technical Evaluation
Report to  the appropriate FAA contracting official, Michael Ward. 
This report recommended awarding the contract to Informati- ca, based
on its clear technical superiority. The same day, 




__________

n to this mandate, and it handles protests and contract disputes that 
arise under the Acquisition Management System. See 14 C.F.R.  part 17
(2000).


Steelman learned price information for the four finalists.  The
following Tuesday, August 31, 1999, Ternay notified  Steelman that the
Factor 5 scoring had been completed  incorrectly, because Informatica
had been judged on the past  performance of its subcontractor.2


The next day, September 1, 1999, the TET was reconvened,  and its
members agreed that a Factor 5 scoring error had  been made.
Informatica was given the opportunity to submit  additional past
performance references. However, the TET  found these references
lacking, and Informatica's score on  Factor Five was reduced
considerably, from average to poor.  After the Factor 5 rescoring, on
September 3, 1999, the TET  characterized Informatica as the
"marginally technically supe- rior offeror." Informatica's edge over
its closest competitor  had dropped from three and a half to two
points, although its  proposal was still the only one that had won an


However, the revised Technical Evaluation Report complet- ed by the IPT
after the Factor 5 rescoring did not reflect the  TET's consensus that
Informatica still possessed a measura- ble and meaningful technical
edge over its competitors. In- stead, this report stated that "the
overall technical ratings of  each proposal are too close to identify
the superior offeror,  that each is capable of providing the services
called for ...  and for the purposes of this technical evaluation each
is the  equal of the other." The final Award Recommendation and 
Determination, prepared by Steelman, Ternay, and Ward,  awarded the
contract to Multimax. It stated that "there is  insufficient
demonstrated technical superiority on the part of  Informatica to
justify the additional expense of awarding the  IT contract to that
offeror. Over the life of the contract,  Informatica would cost almost
a million dollars more than  Multimax. [$23,926,570.40 for




__________

n 2 As noted subsequently by ODRA, potential offerors and con- tracting
officials at the Center demonstrated some confusion about  whether
Factor 5 was confined to evaluation of performance as a  general
contractor only.


for Multimax....]" A contract with Multimax was executed  on September
15, 1999.


Informatica filed a protest with ODRA on September 28,  1999, charging
that the Center had departed from the evalua- tion criteria set forth
in the Screening Information Request,  and in subsequent materials
stating that its proposals would  have "looked very different" if it
had understood price would  be given a central role in the selection
decision. Multimax  intervened, and after receiving the parties'
comments and  responses, ODRA issued its findings and recommendations.
 ODRA's report suggested that the IPT allowed concerns  about price to
corrupt the evaluation process. ODRA deter- mined that "the Center
improperly 'departed' from the Solici- tation's evaluation criteria,
abandoning the 'best value'  scheme and effectively making an award to
the lowest  price/technically acceptable offeror." Additionally, the
ODRA  report stated,


without a rational basis, [Steelman] re-worded the [TET]  report,
systematically eradicating the previous conclusion  that
[Informatica's] proposal was technically superior to  that of
Multimax. The ODRA concludes that Mr. Steel- man's actions, which were
taken 'with the result [of  awarding the contract to Multimax] in
mind,' leveled the  technical field completely (at least on paper),
allowing  low price to determine the award decision.


ODRA bolstered its conclusions by referring to an email  message that
was sent from Ternay to Steelman on Septem- ber 8, 1999, after the
Factor 5 rescoring that narrowed  Informatica's edge over its
competitors. This message in- cluded a draft award recommendation that
stated, in part,  "given the solicitation's emphasis on technical
superiority over  price, the qualitative differences between the two
companies  fully justifies [sic] paying a 4% premium for Informatica
over  Multimax." Based on this email message, ODRA drew the  inference
that on September 8 Ternay believed that even  though Informatica's
margin of technical superiority over its  competitors had shrunk,
Informatica still provided the best  value. However, draft documents
that Steelman transmitted 


to Ternay, Ward, and other officials at the Center on Septem- ber 8
characterized the offerors as equally capable and rec- ommended
awarding the contract to Multimax. ODRA inter- preted the events of
September 8 as evidence of a dramatic  difference in viewpoint between
Steelman and Ternay on that  date. Thus, ODRA considered Steelman's
drafts expressing  a preference for Multimax to be a "total
about-face" from the  judgment of Ternay that was unduly influenced by


In view of its findings, ODRA recommended that the  contract with
Multimax be terminated, and remaining parts of  the contract be
awarded to Informatica. ODRA's report  stated that "it is clear that
[Informatica] should have been  awarded the contract, had the
Solicitation's evaluation criteria  been followed, and there is
nothing that would render imprac- ticable an [Informatica] takeover at
this stage." The FAA  Administrator adopted ODRA's findings and
recommenda- tions, and Multimax challenges the Administrator's order, 
requesting that it be vacated with instructions to terminate  the
contract with Informatica and to execute a new contract  with


II.


On appeal, Multimax challenges the FAA's Order in three  respects.
First, Multimax contends that ODRA impermissi- bly substituted its
judgment for that of the Center's person- nel by relying on inferences
from an incomplete review of the  evolving evaluation and source
selection process, rather than  considering the reasonableness of the
Center's final evalua- tion and award decisions. Second, Multimax
contends that  ODRA erred as a matter of law in concluding that the 
Center's award decision was contrary to the "best value"  criteria
based on an inference drawn from the events of one  day, September 8,
1999. Third, Multimax contends that  ODRA's key findings are
unsupported by substantial evi- dence. Multimax asserts that ODRA
ignored Steelman's  sworn testimony and documentary evidence available
in dis- covery materials provided to ODRA to which that testimony 


referred, namely that the so-called critical "Price/Technical 
Trade-off" section in the September 8 version of the award 
recommendation document was created before the Factor 5  rescoring.


Our review is confined to determining whether the FAA's  order adopting
the ODRA's findings and recommendations is  arbitrary or capricious or
contrary to law. See 5 U.S.C.  s 706(2)(A). Thus, as the court
recently stated in J.A. Jones  Management Services v. FAA, 225 F.3d
761 (D.C. Cir. 2000),  "[u]nder this standard, [the court] 'may
reverse only if the  agency's decision is not supported by substantial
evidence, or  the agency has made a clear error in judgment.' " Jones,
225  F.3d at 764 (quoting Kisser v. Cisneros, 14 F.3d 615, 619  (D.C.
Cir. 1994)); see also 49 U.S.C. s 46110(c) (West  1997). The court's
scrutiny is highly deferential because the  court is reviewing an
agency procurement decision that impli- cates the agency's technical
expertise. "Where a procure- ment 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). 
[The court is] particularly reluctant to second-guess agency 
decisionmaking on these " 'delicate questions.' " Elcon En- ters.,
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. Cir. 1984))." Jones, 225 F.3d  at 765.


Thus, Multimax's contention that ODRA applied the wrong  standard of
review is misplaced. To the extent that ODRA  was required to apply an
arbitrary and capricious standard of  review, ODRA met this
requirement. Because ODRA deter- mined that the IPT had impermissibly
deviated from a "best  value" evaluation scheme, it was not
unreasonable for ODRA  to recommend that Informatica's protest be
sustained. Given  our highly deferential scrutiny, we conclude, in the
absence of  evidence that ODRA's decision process "involved a clear
and  prejudicial violation of applicable statutes or regulations," 
that ODRA's findings and recommendations are consistent  with
arbitrary and capricious review. Elcon Enters., 977  F.2d at 1478
(quoting Kentron Hawaii, Ltd. v. Warner, 480 


F.2d 1166, 1169 (D.C. Cir. 1973) (internal quotation marks  omitted));
see also Kisser, 14 F.3d at 618.


Similarly, Multimax fails to demonstrate that ODRA erred  by
substituting its technical judgment for the Center's assess- ment of
price and technical tradeoffs, instead of simply check- ing to see
that the Center's final procurement decision was  rational. ODRA's
report focused on the integrity of the  procurement process, and
correctly scrutinized the actions of  the Center's officials to
determine whether they adhered to a  "best value" evaluation.
Furthermore, the regulations that  govern ODRA afford it broad
discretion to choose an appro- priate remedy for a successful protest.


Multimax's contention that ODRA's findings are not sup- ported by
substantial evidence also fails. Substantial evi- dence is defined as
"more than a 'scintilla,' but less than a  preponderance of the
evidence." Evans Fin. Corp. v. Di- rector, Office of Workers
Compensation Programs, 161 F.3d  30, 34 (D.C. Cir. 1998) (citations
and internal quotation marks  omitted). Again, Jones provides useful
guidance. "[T]he  question [the court] face[s] is 'not whether
[petitioner's] view  of the facts supports its version of what
happened, but rather  whether the [agency's] interpretation of the
facts is reason- ably defensible.' Harter Tomato Prods. Co. v. NLRB,
133  F.3d 934, 938 (D.C. Cir. 1998) (internal quotation marks 


Multimax relies heavily on a document that is not in the 
administrative record to dispute ODRA's conclusions about  the email
messages that Ternay and Steelman sent on Sep- tember 8, 1999.
Multimax attempts to call our attention to  this new evidence to prop
up its contention that ODRA  mistakenly inferred that on this date
disagreement about the  merits of the offerors' proposals existed
between Ternay and  Steelman, and mistakenly concluded that Steelman's
Septem- ber 8 drafts should be characterized as a dramatic "about-
face." It would, however, be fundamentally inappropriate for  the
court to consider this new evidence. Although this evi- dence was made
available to Multimax during discovery, it 


was not made part of the administrative record, and hence  ODRA had no
opportunity to rule on it. Multimax was a  party to the ODRA
adjudication, received during discovery  the document that it now uses
to dispute ODRA's findings,  and is unable to provide any excuse for
its failure to bring the  document to ODRA's attention. "The burden of
uncovering  and pointing to the facts relevant to the case before the 
agency [belongs to] the parties most concerned in the matter  ... Our
role is to review the agency's handling of the  objections put before
it, not to provide a forum for new  arguments based upon different
facts that the petitioner could  have but did not bring out below."
Sprint Communications  Co., L.P. v. FCC, 76 F.3d 1221, 1227-28 (D.C.


In view of the record before it, ODRA's inference that the  language in
Ternay's September 8 email message supported  the conclusion that the
Technical Evaluation Report departed  from the principles of "best
value" proposal evaluation was  reasonable. Furthermore, even if that
particular inference  about the events of September 8 could be
considered dubious,  ODRA's decision remains supported by substantial
evidence.  Even if there was no disagreement between Ternay and 
Steelman on September 8, there is still evidence to support  the
conclusion that the IPT deviated from the principles of  "best value"
assessment. Contrary to Multimax's contention,  ODRA's findings are
not solely based on its interpretation of  the email messages sent by
the IPT on September 8. Rath- er, the bulk of ODRA's findings and the
core elements of its  recommendations are supported by at least three
other con- siderations.


First, ODRA noted the dichotomy between the consensus  the TET reached,
that Informatica's proposal was measurably  superior to the other
offerors' proposals, and the conclusion  the IPT presented in the
final Technical Evaluation Report,  that each offeror was equally
"capable." The use of the term  "capable" is strongly indicative of a
"lowest priced/technically  acceptable" evaluation rather than a "best
value" analysis.  Second, ODRA pointed to Steelman's admission that he
had  drafted the final TET report, which was supposed to present  an
objective perspective on the technical merits of the propos-


als, with the particular result of awarding the contract to  Multimax
in mind. Third, ODRA was influenced by the way  that Steelman revised
the Technical Evaluation Report and  the Award Recommendation and
Determination after he  learned about the prices of the proposals,
making Informati- ca's strengths seem less significant and making
Multimax's  weaknesses appear less problematic. These three factors 
serve as substantial evidence to support ODRA's conclusion  that the
IPT abandoned the "best value" analysis to which it  was required to
adhere. Thus, any mistaken inference that  ODRA may have made does not
require reversal. See Jones,  225 F.3d at 764, citing 5 U.S.C. s


Accordingly, we deny the petition for review.