Loyal Source Government Services, LLC v. United States

In the United States Court of Federal Claims

No. 24-1001

Filed: March 31, 2025

Re-issued: April 8, 2025 1

________________________________________

)

LOYAL SOURCE GOVERNMENT SERVICES, )

LLC, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

________________________________________ )

Samuel Knowles, DLA Piper LLP (US), Washington, D.C., for Plaintiff Loyal Source

Government Services, LLC. Thomas E. Daley and David R. Lacker, of counsel.

Galina I. Fomenkova, Senior Trial Counsel, United States Department of Justice, Civil Division,

Commercial Litigation Branch, Washington, D.C., with whom were Brian M. Boynton, Principal

Deputy Assistant Attorney General, Patricia McCarthy, Director, Douglas K. Mickle, Assistant

Director, Roger A. Hipp and Pavan Mehrotra, Department of Homeland Security, of counsel.

OPINION AND ORDER

MEYERS, Judge.

To protect the integrity of federal procurements, Congress prohibits the disclosure of

certain procurement information during the pendency of the procurement to which it relates.

Unfortunately, prohibited disclosures still happen in a small number of cases. This is one of

those cases. In such cases, Congress requires the procuring agency to reasonably investigate any

alleged disclosure and reasonably ensure that there is no ongoing harm to the procurement

because of the disclosure. Because the procurement officials in this case acted reasonably and

effectively mitigated the harm of the unlawful disclosure, the court denies Plaintiff’s motion for

judgment on the administrative record and to enjoin the procurement and order additional relief,

and grants the Government’s cross-motion for judgment on the administrative record.

1

The court initially filed this Opinion and Order under seal to allow the parties to propose

redactions. The parties submitted their proposed redactions, ECF No. 49, and the court has

incorporated those proposed redactions and makes them with bracketed asterisks (“[ * * * ]”)

below.

I. Background

A. Medical Services at the Southern Border

Within the Department of Homeland Security (“DHS”) lies the Customs and Border

Protection (“CBP”) Agency. 6 U.S.C. § 211(a). CBP protects “the nation’s borders and

facilitat[es] international travel and trade.” Stats and Summaries, U.S. Customs & Border

Protection (Nov. 19, 2024), https://www.cbp.gov/newsroom/stats; see also 6 U.S.C. § 211(c). It

operates as the front line of border management, addressing a wide range of challenges

associated with border security, immigration, and public health. Each year, CBP detains over

one million individuals, most of whom cross the Southern Border. Tab 9 at AR388.

Migrants often endure arduous journeys through harsh conditions “that adversely affect

their health and well-being and pose medical and public health concerns upon apprehension and

processing.” Id. As part of its mission, CBP ensures that individuals in custody receive

necessary medical treatment tailored to the high-pressure, “front-line operational environment.”

Id. This procurement is for the medical providers needed to provide this care.

B. The Procurement

This procurement aims to meet CBP’s medical support requirements and enhance CBP’s

capacity to respond effectively to the growing demands of border management, primarily at the

Southern Border. Tab 6 at AR349. The successful bidder must provide a comprehensive suite of

medical services. Tab 2 at AR322; see also Tab 93.d at AR8084. For example, it must conduct

“health intake interviews, medical assessments, . . . referral coordination, follow-up care,

medication management, enhanced medical monitoring, public health/infectious disease support,

[and] medical summaries.” Tab 2 at AR322. And the successful bidder must have operational

flexibility, a necessity that became evident “during the 2014 influx of Unaccompanied Children.”

Id.

Loyal Source Government Services, LLC (“Loyal Source”) won the predecessor contract

in 2015. See Tab 6 at AR350. During the first years of the contract, CBP only needed medical

support at three sites for eight hours per day. Id. at AR349. But as migration flows surged, so

did the demand for medical services. By “FY 21, CBP saw migrants entering the country at an

unprecedented number of sites.” Id. This resulted in an increase in the number of CBP sites

requiring medical support services to over seventy, with an estimated expansion to more than

ninety-four sites through FY 27. Id. And these sites required staffing twenty-four hours per day,

seven days per week—or 24/7/365.

Its experience with the changing needs at the border and how it was able to adapt under

the prior contract taught CBP that the flexibility “to expand services in new and existing

locations” was essential as operational needs evolved. Id. at AR351. Accordingly, the work

under the new contract would be “dynamic in nature, requiring a solution . . . flexible enough to

meet the mission, adjust to changes in policy, allow CBP to add/delete sites, and adjust to

changes in operational circumstances.” Id. Finally, the new procurement sought to allow “the

Government to practice adequate oversight of the contract via specific deliverables and

tracking.” Id.

2

To replace the soon-expiring contract, CBP issued Solicitation No.

70B03C22Q00000081 (“the Solicitation”) on July 8, 2022. See Tab 22. The award would be

issued on a “best value” basis, and the procurement was split into two phases. Tab 20 at AR501.

In Phase I, CBP would evaluate bidders’ staffing plans and corporate experience. Id. at AR501–

02. In Phase II, CBP would evaluate bidders’ technical approaches and capabilities, past

performance, and price. Id. at AR502.

Vighter, LLC won the initial award in September 2022. Tab 97 at AR8201. Loyal

Source and other bidders protested the award, resulting in CBP taking corrective action. Id.

CBP has amended the Solicitation several times since. Id. CBP has completed the Phase I

evaluation. Tab 63 at AR6010. Phase II is currently underway, and no new award has been

made. Loyal Source remains the incumbent contractor. Since September 2022, it has performed

under a series of sole source bridge contracts. Tab 6 at AR350.

C. Disclosures of Information

Loyal Source points to three disclosures that “violated or potentially violated the”

Procurement Integrity Act (“PIA”).” 2 ECF No. 37 at 1. The first comes from a Washington Post

article. The second two are letters from the Government Accountability Project (“GAP”) to

Congress (which also led to significant press coverage).

On November 19, 2023, the Washington Post published an article titled “Medical

provider vying for border contract faces scrutiny after girl’s death.” Tab 53 at AR5703–06. The

article details information regarding the pending procurement and includes assertions of Loyal

Source’s performance struggles as incumbent. Id. at AR5703. CBP officials disclosed the

information, which included information about CBP’s Phase I evaluation of Loyal Source’s

proposal. Id.

Loyal Source timely notified the supervisory contracting officer at CBP of the potential

PIA violation on November 28, 2023. Id. at AR5708. CBP quickly concluded that a PIA

violation occurred based on reviewing the Washington Post article, which plainly included

disclosure of evaluations. CBP’s Deputy Head of Contracting Activity, on behalf of the Head of

Contracting Activity (“HCA”), promptly requested that the “DHS [Office of the Chief

Procurement Officer (“OCPO”)] handle the competition going forward.” Tab 58 at AR5751.

DHS’s Chief Procurement Officer approved the transfer request. Tab 59 at AR5753. DHS then

took further steps to maintain procurement integrity, including removing all CBP personnel from

the procurement, and vetting officials continuing to work on the procurement. See generally

Tabs 50–52, 60, 62. 3

The two other alleged PIA violations stem from letters that GAP sent to Congress on

behalf of Troy Hendrickson (the former contracting officer’s representative) and other unnamed

CBP employees. GAP sent the first letter on November 30, 2023. Tab 76.b at AR7343–63.

2

Loyal Source points to a fourth disclosure but does not argue that it amounted to a PIA

violation, just that it was improper. ECF No. 37 at 6.

3

These steps are addressed in detail below.

3

Loyal Source timely notified Donna McMullen, then-supervisory contracting officer, of a

potential PIA violation in the first letter. Id. at AR7400–02. GAP sent the second letter on

February 16, 2024. Id. at AR7310–42. Loyal Source notified Gregory Blaszko, the new

contracting officer, of a potential PIA violation in the second letter. Id. at AR8226–30. CBP

admits that it did not determine whether the letters amounted to PIA violations because “CBP

had already taken the maximum mitigation step, making any failure to consider” whether they

violated the PIA “non-prejudicial.” ECF No. 46 at 9; see also ECF No. 39 at 5.

D. Loyal Source’s GAO Protest

Loyal Source protested before the Government Accountability Office (“GAO”) in March

2024 based on similar allegations to those it raised here. 4 See Tab 76.a; Tab 97 at AR8204–11.

It argued that CBP’s actions prejudiced the company by failing to sufficiently mitigate PIA

violations. Tab 76.a at AR6636. It also criticized CBP for not considering whether the GAP

letters violated the PIA. Id. at AR6639–40. Loyal Source requested that CBP either cancel the

Solicitation “or, at a minimum, conduct a reasonable investigation, including identifying and

removing the individuals within CBP who are biased against Loyal Source.” Tab 97 at AR8209

(internal quotation marks omitted). The GAO disagreed. It found that the Government took

adequate mitigation measures under the Federal Acquisition Regulation (“FAR”) and reasonably

reduced prejudice. Id. at AR8208.

Loyal Source then filed its protest in this court. ECF No. 1.

II. Standard of Review

This court has jurisdiction over a pre-award bid protest under 28 U.S.C. § 1491(b)(1). It

applies a limited and deferential scope of review in bid protest actions. The question for the

court is whether the agency’s action is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law, and, if so, whether the error is prejudicial.” Glenn Def. Marine

(ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013) (citing 28 U.S.C.

§ 1491(b)(4)’s adoption of the standard in 5 U.S.C. § 706).

“The court’s task is to determine whether (1) the procurement official’s decision lacked a

rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.”

Id. (internal quotation marks omitted) (quoting Savantage Fin. Servs., Inc. v. United States, 595

F.3d 1282, 1285–86 (Fed. Cir. 2010)). It is not to determine whether there is a better or “‘more

correct’ way” to perform the underlying action. IAP World Servs., Inc. v. United States, 153

Fed. Cl. 564, 567 (2021). So long as there is a “reasonable basis for [an] agency’s action, the

[C]ourt should stay its hand even though it might, as an original proposition, have reached a

different conclusion as to the proper administration and application of the procurement

regulations.” Perspecta Enter. Sols. LLC v. United States, 151 Fed. Cl. 772, 780 (2020)

(alterations in original) (internal quotation marks omitted) (quoting Honeywell, Inc. v. United

States, 870 F.2d 644, 648 (Fed. Cir. 1989)). “[T]he disappointed bidder bears [the] heavy burden

4

Before the GAO, Loyal Source also alleged certain organizational conflicts of interest that it

has not raised before this court.

4

of showing that the [] decision had no rational basis.” Allied Tech. Grp., Inc. v. United States,

649 F.3d 1320, 1326 (Fed. Cir. 2011) (internal quotation marks omitted) (quoting Centech Grp.,

Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009)).

Finally, the protester must, in addition to error, show that the error caused prejudice—

there is no presumption. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); Sys.

Stud. & Simulation, Inc. v. United States, 22 F.4th 994, 997–98 (Fed. Cir. 2021). To establish

prejudice in a pre-award protest, Loyal Source must show it suffered “a non-trivial competitive

injury which can be addressed by judicial relief.” Weeks Marine, Inc. v. United States, 575 F.3d

1352, 1362–63 (Fed. Cir. 2009) (internal quotation marks omitted).

III. Discussion

A. Motion for Judgment on the Administrative Record

Like its protest before the GAO, Loyal Source challenges CBP’s responses to the

Washington Post article and two letters to Congress. The court first reviews the PIA framework

that applies to Loyal Source’s claims, and then reviews each alleged violation. It then turns to

Loyal Source’s motion to complete or supplement the record.

1. An agency must take certain steps when evaluating an actual or alleged

violation of the PIA.

Congress enacted the PIA in the aftermath of Operation Ill Wind, which exposed

corruption in the procurement process. See, e.g., Clean Team Janitorial Serv., Inc. v. United

States, 171 Fed. Cl. 1, 8 (2024) (citing Pub. L. No. 100-679, § 6(a), 102 Stat. 4063 (1988)). The

PIA bars federal government officials from “knowingly disclos[ing] contractor bid or proposal

information or source selection information before the award of a Federal agency procurement

contract to which the information relates.” 41 U.S.C. § 2102(a)(1). Contractor bid or proposal

information is non-public “information submitted to a Federal agency as part of or in connection

with a bid or proposal to enter into a Federal agency procurement contract,” like cost or pricing

data or proprietary information. FAR 3.104-1. 5 As relevant here, source selection information

includes “[r]eports and evaluations of source selection panels, boards, or advisory councils.” 41

U.S.C. § 2101(7)(I).

The FAR provisions implementing the PIA set forth actions an agency must take upon

receiving notice of a potential PIA violation. First, the contracting officer “must determine if the

reported violation . . . has any impact on the pending award or selection of the contractor.” FAR

3.104-7(a). If there is no impact, the contracting officer “must forward the information

concerning the violation or possible violation and documentation supporting [the] determination

. . . to an individual designated in accordance with agency procedures.” Id. 3.104-7(a)(1). And

“if that individual concurs, the contracting officer may proceed with the procurement.”

Id. 3.104-7(a)(1)(i). But if the individual disagrees, he or she “must promptly forward the

5

The court cites to the Federal Acquisition Regulations as the “FAR.” All FAR sections are

contained in Title 48 of the Code of Federal Regulations.

5

information and documentation to the HCA and advise the contracting officer to withhold

award.” Id. 3.104-7(a)(1)(ii).

If there is an impact on the procurement, “the contracting officer must promptly forward

the information to the HCA.” Id. 3.104-7(a)(2). The FAR requires the HCA “review all

information available and, in accordance with agency procedures, take appropriate action.”

Id. 3.104-7(b). The regulation provides a suggested, non-exhaustive list of appropriate actions.

For example, the HCA might:

• Advise the contracting officer to continue with the

procurement;

• Begin an investigation;

• Refer the information disclosed to appropriate criminal

investigative agencies;

• Conclude that a violation occurred; or

• Recommend that the agency head determine that the

contractor, or someone acting for the contractor, has engaged

in conduct constituting an offense punishable under [the PIA],

for the purpose of voiding or rescinding the contract.

Id.

Or the HCA might do any combination of these—or none of them. None is necessary or

sufficient; the statute “defers to the procuring agency to take appropriate action.” Clean Team,

171 Fed. Cl. at 8; see also SAGAM Securite Senegal v. United States, 154 Fed. Cl. 653, 668

(2021) (explaining that “a contracting officer has broad authority to protect the integrity of the

procurement process”), aff’d, No. 2021-2279, 2023 WL 6632915 (Fed. Cir. Oct. 12, 2023). But

what he or she decides to do must be reasonable, as this court reviews the action under the

arbitrary and capricious standard. See PAI Corp. v. United States, 614 F.3d 1347, 1352–53 (Fed.

Cir. 2010); see also Clean Team, 171 Fed. Cl. at 10.

Finally, if the HCA concludes that a PIA violation occurred, he or she may direct the

contracting officer to “[c]ancel the procurement[,] [d]isqualify an offeror[,] or [t]ake any other

appropriate actions in the interests of the Government.” FAR 3.104-7(d).

2. CBP rationally responded to the disclosure of source selection information

in the Washington Post.

Loyal Source points to three paragraphs in the Washington Post article that it believes

violated the PIA, quoted as follows:

• Loyal Source Government Services is among a half-dozen

companies under consideration for the five-year contract to

6

provide medical screening and services for the thousands of

migrants detained each day along the southern border,

according to three U.S. Customs and Border Protection

officials and records obtained by [the Washington Post].

• Loyal Source was added last month to the shortlist of

companies vying for the new contract. A CBP advisory board

did not recommend Loyal Source for the next round of

consideration, but the agency’s procurement office overruled

the board’s findings, according to the three CBP officials, who

spoke on the condition of anonymity because they are

prohibited from discussing the source selection process.

• The contract selection was structured in a way that a

company’s past performance could not be considered as a

factor during the first phase, but it will become a part of the

process in the second phase, the officials said. 6

ECF No. 37 at 6; Tab 53 at AR5703–05.

Soon after the Washington Post published its story, Loyal Source emailed the then-

contracting officer, Donna McMullen, providing notice of the potential PIA violation. Tab 53 at

AR5709. CBP moved quickly to address the PIA violation. Loyal Source, however, complains

that the Government failed to conduct an adequate investigation into the PIA leak because all the

HCA did was read the article, review Loyal Source’s notice regarding the article, and review an

email from counsel. ECF No. 44 at 4–6; see also ECF No. 37 at 15. But Loyal Source mistakes

swift action for a lack of action.

Recall that Loyal Source emailed CBP on November 28, 2023, about the possible

violation. CBP then took the following steps:

• On November 29, 2023, CBP’s Deputy HCA contacted DHS

and CBP’s Office of Professional Responsibility to alert them

of the possible PIA violation. The initial email stated that a

PIA violation occurred. That email also “formally asked [the

Office of Professional Responsibility (“OPR”)] to investigate

to see which CBP employees engaged in sharing information

with the reporter.” These actions were taken to “work on a

6

Loyal Source, in the notice to the contracting officer, asserted that this paragraph violated the

PIA, but it does not make this argument to this court. Compare Tab 53 at AR5709, with ECF

No. 37 at 6. It is also not clear that this paragraph contains any source selection information (as

defined in the PIA). The Solicitation, which has been public at all relevant times, states

explicitly that CBP would consider past performance in Phase II rather than Phase I. Tab 20 at

AR502.

7

path forward to protect the integrity of the procurement.” See

Tab 56 at AR5744–45.

• On November 30, 2023, the CBP HCA and OCPO reviewed

four options to mitigate the violation. They decided that “the

most appropriate remedy . . . [was to h]ave DHS or another

component do the acquisition [and] provide the [technical

evaluation] and procurement team.” In their view, taking this

course of action “would address the PIA violation completely,”

notwithstanding that it “would put the [Fiscal Year 2022

funding] at the highest risk.” See Tab 57 at AR5747.

• On December 1, 2023, CBP emailed DHS, confirming that “the

HCA believes [it is] in the best interest of the government . . .

to request the DHS OCPO handle the competition going

forward.” This would “mitigate the negative impact of the

[PIA] violation.” CBP also indicated that it would prepare an

official memorandum to request the switch. See Tab 58 at

AR5751.

On December 11, 2023, CBP’s HCA issued a formal memorandum in which she “(1)

[a]dvised the contracting officer to pause the procurement; (2) [r]eferred the matter to the Office

of Professional Responsibility; and (3) [c]oncluded that a [PIA] violation occurred.” Tab 59 at

AR5752. Next, because of the PIA violation, she:

determined it is in the best interest of the Government for the

medical services procurement to be transferred to the DHS Office

of the Chief Procurement Officer to manage the source selection

phase and award the new contract. The transfer will protect the

integrity of the continuing procurement action and ensure[] that

this essential procurement moves forward while the investigation

into the violation and misconduct of CBP personnel is underway.

Id. at AR5753; see also Tab 62 at AR6008 (reiterating that the goal of the transfer was “to

protect the integrity of the continuing procurement action and to ensure that this essential

procurement moves forward while the investigation into the potential violation and misconduct

of CBP personnel is formally conducted by OPR”). Accordingly, she “request[ed] approval to

temporarily transfer the . . . procurement to” DHS to manage. Tab 59 at AR5753. DHS

approved the request. Id.

OCPO assigned Gregory Blaszko to be the new contracting officer. Tab 49 at AR5255–

56. He issued several amendments to the Solicitation and requested new proposals. See Tabs

50–52. Importantly, he named a new evaluation team. Tab 62 at AR6008. Though the initial

replacement team contained a CBP employee as a non-voting technical advisor, that individual

was removed after a second round of vetting that Mr. Blaszko conducted of all evaluation team

8

members. Id. at AR6008–09. 7 Ultimately, Mr. Blaszko concluded that he was “confident that

each member . . . will be fair and impartial” and “that no member of the reconstituted evaluation

team could have disclosed information to the Washington Post in violation of the [PIA].” Tab 72

at AR6537. In the end, the evaluation team does not contain anyone from CBP, “or anyone

involved in the evaluation team while the procurement was at CBP.” ECF No. 40 at 16

(emphasis omitted) (comparing Tab 73 at AR6540 with Tab 10 at AR433).

For starters, Loyal Source believes that the investigation was “perfunctory and narrowly

circumscribed.” ECF No. 44 at 5. But an investigation need only go so far as needed to

determine whether a violation occurred. Here, the violation was clear upon reading the

Washington Post article: Agency proposal evaluations in an ongoing procurement were disclosed

publicly. There was no need to dig deeper. As the Federal Circuit has explained,

“[i]nvestigations are dynamic[, a] decision as to what actions to take next is often influenced by

what has been learned so far.” Oak Grove Techs., LLC v. United States, 116 F.4th 1364, 1381

(Fed. Cir. 2024). CBP learned that its officials disclosed source selection information by reading

the article. It then read Loyal Source’s notice and sought legal advice, concluding that a PIA

violation occurred. That is enough.

Consider an example. Suppose that the New York Times published an article on its front

page that included an offeror’s price proposal. Little investigation is necessary to figure out that

a PIA violation occurred. It is inconceivable that the court would require further investigation

into whether a violation occurred—it would be apparent on the front page of the newspaper

(assuming, of course, that the offeror did not provide the information itself). The same is true

here.

What is more, the Federal Circuit recently clarified the “twin layers of deference” owed

“to the agency’s investigative process.” Oak Grove Techs., 116 F.4th at 1380. That deference

stems from the discretion Congress vested in the agency and the “‘strong presumption’ that

governments officials . . . act consistent with their duties.” Id. (quoting Sanders v. U.S. Postal

Serv., 801 F.2d 1328, 1331 (Fed. Cir. 1986)). So long as an investigation is rational, this court

must uphold the agency’s action. And the CBP’s decision-making here met this standard.

Upon learning of the PIA violation, CBP took quick and decisive action, as detailed

above. It told the contracting officer to pause the procurement. It referred the matter to OPR,

showing how seriously it took the procurement integrity concerns (the OPR investigation

remains ongoing). It transferred the procurement completely out of CBP and into DHS OCPO

“to [further] protect the integrity of the continuing procurement action.” Tab 59 at AR5752–53.

All the while, it ensured that “investigation into the violation and misconduct of CBP personnel”

continued. Id. And DHS provided fresh troops. It named a new contracting officer, who issued

new amendments and requested new proposals, and then named a new evaluation team that did

not include anyone from CBP—only after vetting the potential members twice. DHS and CBP

took these actions out of the utmost caution. Perhaps more would be necessary if the DHS

7

To be clear, there is no indication that this CBP employee had anything to do with the

disclosure of PIA covered materials. The contracting officer appears simply to have been

removing all CBP employees from any role in the procurement going forward.

9

wanted to leave the procurement with CBP to ensure that those on the evaluation team were not

involved in the PIA violations. But that is not the case before the court. Here, DHS removed

CBP from the procurement entirely and then vetted the new evaluation team from OCPO to

ensure they were not involved with or tainted by the PIA violation. This court has no basis to

say that is not sufficient to allow the procurement to move forward.

Loyal Source erroneously points to SAGAM Securite Senegal in support. ECF No. 37 at

16 (citing SAGAM Securite Senegal, 154 Fed. Cl. at 670). First, it argues that CBP did not “take

appropriate action” because it took “an ostrich-like stance and refuse[d] to reasonably address

the taint caused” by the improper disclosures. ECF No. 37 at 16 (internal quotation marks

omitted) (quoting SAGAM Securite Senegal, 154 Fed. Cl. at 670). And second, that “‘any

reasonable corrective action was required to address, in some substantive way,’ the harm that an

offeror suffered as a result of a PIA violation.” Id. at 22 (quoting SAGAM Securite Senegal, 154

Fed. Cl. at 667).

But the facts in SAGAM Securite Senegal are quite different from the facts here. There,

the Department of State (“State”) issued a solicitation for guard services. SAGAM Securite

Senegal, 154 Fed. Cl. at 658–59. SAGAM (the incumbent), Torres-SAS Security LLC Joint

Venture (“Torres”), and one other offeror submitted proposals. Id. at 659. State disqualified the

third offeror and awarded the procurement to Torres. Id. State, while taking corrective action,

learned that the contracting officer violated the PIA by disclosing SAGAM’s cost and bid

information to Torres. Id. That information “induced Torres to make material price proposal

changes.” SAGAM Securite Senegal v. United States, No. 2021-2279, 2023 WL 6632915, at *2

(Fed. Cir. Oct. 12, 2023) (internal quotation marks omitted). State then determined the error

warranted cancellation and resolicitation. SAGAM Securite Senegal, 154 Fed. Cl. at 665. Those

steps, however, did not “restore fairness to th[e] procurement” or “reasonably address the CO’s

inequitable conduct.” Id. at 665, 669. In other words, they lacked a rational basis because those

steps “merely perpetuate[d] the agency’s procurement error so that Torres” could benefit. Id. at

664; SAGAM Securite Senegal, 2023 WL 6632915, at *6 (explaining that a redo “c[ould not]

erase the knowledge that Torres now ha[d] regarding how to comply with solicitation

requirements”). This court imposed the harsh remedy of disqualifying Torres and directing

award to SAGAM, a decision that was upheld on appeal. SAGAM Securite Senegal, 154 Fed. Cl.

at 675; SAGAM Securite Senegal, 2023 WL 6632915, at *11.

Loyal Source’s first contention that CBP “took an ostrich-like stance” and “refuse[d] to

reasonably address the taint caused” by the improper disclosures fails because the argument

mistakes decisive action for inaction. But DHS acted thoroughly and decisively. It transferred

the procurement completely to DHS OCPO and removed anyone from CBP from the

procurement. DHS appointed a new contracting officer who amended the Solicitation and

received updated proposals. And the new contracting officer vetted everyone working on the

procurement going forward twice to ensure that they were not involved with or tainted by the

disclosure. This action reasonably neutralized potential taint, unlike State’s actions in SAGAM

Securite Senegal.

Loyal Source’s second contention that DHS failed to reasonably remove the taint of the

PIA violation fails for two reasons. First, Loyal Source omits the second clause in the sentence

from SAGAM Securite Senegal. In relevant part, the sentence reads, “[A]ny reasonable

10

corrective action was required to address, in some substantive way, the fact that Torres now

possesses competition-sensitive information that it has no right to possess.” SAGAM Securite

Senegal, 154 Fed. Cl. at 667. In SAGAM, the competitor had SAGAM’s pricing data. Here,

there is no competitor that “possesses competition-sensitive information.” Loyal Source frames

the sentence as requiring that corrective action must “substantive[ly]” address “the harm that an

offeror suffered as a result of a PIA violation.” ECF No. 37 at 22. Even so, the problem that

Loyal Source runs into is that it has not shown any harm, nor has it shown how the transfer was

insufficient to remedy any harm.

Loyal Source next argues that a “reasonable investigation . . . would have included, at a

minimum, a document review and interviews with relevant CBP employees.” ECF No. 37 at 16.

It also says that review of the article should have made CBP ask more questions, like:

[]who are the three CBP officials leaking source-selection

information to the Washington Post; [] why are the three CBP

officials publicly disparaging an offeror in an active procurement;

[] are the three CBP officials biased against Loyal Source and have

they, or other CBP employees, taken other improper actions

against Loyal Source; and [] are Agency employees intending to

use the false and misleading allegations in the article as a basis for

downgrading Loyal Source’s past performance under the

Solicitation.

ECF No. 44 at 5. But neither Loyal Source nor this court determines what the best response is

for an agency to take. See Oak Grove Techs., 116 F.4th at 1380 (emphasizing that a court may

not “substitute[] its own judgment as to what constitutes an adequate investigation”). Indeed, it

would be improper for this court to order DHS and/or CBP to interview individuals as part of the

procurement in this case. 8

To be sure, the Government did not make the required impact determination, as required

by the statute. But, again, by taking the steps it did, it ensured that the disclosures would have no

impact on the procurement. Its actions erase Loyal Source’s concern that CBP was “not in a

position to make a reasonable determination regarding the effect that the violations had on the

procurement.” ECF No. 37 at 17. Furthermore, if CBP did make a positive impact

determination, it would have been required to send the issue to the HCA for her determination.

That much happened here—the contracting officer sent the matter to the HCA, and she made the

determination that transfer to OCPO was appropriate. Even though CBP missed a step along the

way, it reached the same endpoint on the PIA’s review path. Thus, the failure to make an impact

determination in this circumstance was harmless error.

Loyal Source remains concerned about potential bias at CBP, and in doing so, conflates

its bias allegations and its PIA allegations. But they are distinct. The PIA does not require an

8

The court is cognizant of the fact that the only thing before it is the procurement, not the

ongoing OPR investigation or any other investigation regarding the PIA violation. Nothing in

this opinion opines on the propriety of any conduct in those investigations.

11

inquiry into potential bias. It requires an inquiry into the potential or actual PIA violation, and

bias alone is not a violation of the PIA. See FAR 3.104-7. In any event, the removal of CBP

from any further involvement in the procurement coupled with the new contracting officer’s

vetting of everyone working on the procurement going forward (twice) ensure that Phase II will

not be tainted by any CBP bias or previous PIA violation. Again, CBP is not involved, and there

are no allegations of any bias, PIA violation, or taint of the DHS OCPO personnel now

conducting Phase II of the procurement. The conclusions that the procurement will no longer be

tainted by the PIA violations or by bias need only be rational. See Honeywell, Inc., 870 F.2d at

648. And again, DHS and CBP’s actions easily met that standard.

Finally, Loyal Source makes a series of failing arguments regarding the mitigation

efforts, contending that they fail to address “the misperception within [CBP] regarding Loyal

Source’s performance and capabilities, the animosity that [CBP] employees have towards Loyal

Source, the [harmful] manipulation of performance ratings by [CBP] employees . . . , and . . . the

pressure that” CBP is under to not award the Solicitation to Loyal Source. ECF No. 44 at 9. In

other words, Loyal Source argues that “transferring the procurement does not adequately

mitigate the harm to Loyal Source and to the procurement.” Id. at 8 (cleaned up). First, neither

perceptions nor misperceptions about Loyal Source’s performance are PIA violations. 41 U.S.C.

§ 2102(a). Second, CBP is neither awarding the contract nor involved in the evaluation any way,

meaning that whatever bias that may exist within CBP is no longer part of this procurement.

For the moment, disregard the prior discussion about CBP’s response. Suppose CBP in fact

acted irrationally. Loyal Source still cannot prove prejudice, which is “always required.” Sys.

Stud. & Simulation, 22 F.4th at 997–98. It “has not shown how [the] disclosures conveyed an

unfair advantage to other vendors” or how it has been “competitively prejudiced.” Tab 97 at

AR8211. Nor has Loyal Source alleged “any bias on the part of DHS personnel, or argue[d] that

the newly appointed DHS contracting officer, evaluation team, or source selection official have

violated the PIA.” Id. Loyal Source says that there exists the “potential to influence members of

the evaluation team who . . . may be unwilling to favorably evaluate” it. ECF No. 44 at 20. That

argument invites the court to give weight to speculation about events that have not happened yet.

The court declines the invitation. Should Loyal Source identify any such conduct during the

evaluation once it happens, it remains free to file a post-award protest on that issue. But in the

present protest, Loyal Source’s claims based on the Washington Post article fail.

3. Letters to Congress 9

The court now turns to the letters to Congress. Loyal Source faults CBP for not

considering whether the letters violated the PIA, arguing that the letters contained false

statements and “confirmed a bias against Loyal Source within CBP and the Office of the Chief

9

Loyal Source also argues that CBP did not comply with FAR Part I “because it has not taken

actions to reasonably address the harm that CBP officials brought upon Loyal Source through the

public disclosures and to ensure that Loyal Source is afforded an opportunity to compete on a

level playing field under the Solicitation.” ECF No. 37 at 25. The court understands these

claims to relate to the bias allegations and considers the bias issues in this section.

12

Medical Officer (“OCMO”).” ECF No. 37 at 7. The court reviews the letters and then considers

Loyal Source’s claims.

a) First Letter to Congress

GAP sent the first letter to Congress that Loyal Source complains violated the PIA on

November 30, 2023. Tab 76.b at AR7344–63. The letter alleges some performance failures by

Loyal Source, such as severe understaffing, employment of medical providers without proper

clearances or licenses, and improper billing practices. See id. It also argues that the CBP’s

Office of Acquisition failed to hold Loyal Source accountable and retaliated against Mr.

Hendrickson (the discloser of information) for raising these concerns. Id.

Loyal Source notified the supervisory contracting officer of the letter via email on

December 14, 2023. Id. at AR7400–02. The email complains that the letter “underscore[s] the

concerns Loyal Source has previously raised related to the integrity of the procurement process”

and “reflects Mr. Hendrickson’s and OCMO’s determination to have Loyal Source replaced on

the follow-on contract.” Id. at AR7400–01. But Loyal Source does not point to specific

language that violates the PIA, even though it argues that the letter “confirm[s an] additional

violation[].” ECF No. 37 at 19. Instead, most of its allegations relate to bias. See Tab 76.b at

AR7400 (arguing that the letter “confirms an improper bias against Loyal Source and continues

to advance the false narrative that Loyal Source did not meet material contractual requirements”

and “confirms a strong bias against Loyal Source and targeted efforts by CBP personnel to

circumvent the proper procurement process so that Loyal Source does not receive the award”).

The language from the letter cited in the email is limited:

• Mr. Hendrickson was responsible for leading preparations for

the new five-year medical services contract recompete.

• [Messages from Mr. Hendrickson to OCMO and the

contracting officers]: As you know, there is much negative

history with the current Loyal Source contract, years of

neglect, open investigations, privacy breach, invoicing issues,

etc. We desire a fresh start with both CO and CS for the new

contract. 10

Id. at AR7400–02.

Before this court, Loyal Source points to the following portions of the letter as violating

the PIA:

• We highlight . . . serious failures by Loyal Source Government

Services to comply with the terms of its $421 million Medical

Services Contract to provide medical care to noncitizens at the

10

This quoted language might lend support to Loyal Source’s bias argument—not a PIA

argument. Tab 76.b at AR7400–02.

13

southern U.S. border, with shocking deficiencies both in the

administration of the contract and the provision of medical

care.

• The new CPARS [Contract Performance Assessment Rating

System] that the team of twelve OCMO personnel, including

Mr. Hendrickson, drafted for the [period of performance] of

September 30, 2020-September 29, 2021 lowered Loyal

Source’s ratings from “exceptional” to “unsatisfactory” and

“marginal” with a recommendation against consideration of

Loyal Source for future similar contracts.

• Mr. Hendrickson also made explicit that the CPARS he and

OCMO created should be expected to be a record for a

potential GAO protest, audits, and OPR . . . investigations.

• There was a tension between OA’s [CBP Office of

Acquisition] focus on the plain language of the Scope of Work

and conservative readings of the FAR and Dr. Tarantino’s

vision, based on his years of medical experience, about the

level of contractor performance required to meet OCMO’s

mandate of safe and ethical medical service delivery.

ECF No. 37 at 7 (internal quotation marks and citations omitted).

One of the key takeaways from the November 30 letter is that Mr. Hendrickson is the

ringleader of an anti-Loyal Source faction at CBP. Mr. Hendrickson served as the former

contracting officer’s representative under the incumbent contract. He was removed before the

original solicitation for the recompete was issued, and “has never served on the evaluation team

for the recompete procurement, either at CBP or now at DHS.” ECF No. 40 at 21.

b) Second Letter to Congress

The second letter to Congress that Loyal Source complains violated the PIA was sent on

February 16, 2024. Tab 76.b at AR7311–42. The letter, from multiple whistleblowers

(including Mr. Hendrickson), contains many of the same factual allegations as the first letter.

Compare id. at AR7355, with id. at AR7312. It alleges underperformance, mismanagement, and

fraud, ultimately urging Congress to address Loyal Source’s purported failures. Id. at AR7311–

12.

Loyal Source attempted to email the new contracting officer on February 27, 2024,

notifying him about the letter to Congress, but incorrectly typed Mr. Blaszko’s email address.

ECF No. 1-10 at 1. Loyal Source included the email in its March 4, 2024, GAO protest, and

resent the email to Mr. Blaszko on March 6, 2024. Tab 79.a at AR7478.

Like the notice regarding the first letter, the second notice repeats bias allegations. Tab

76.b at AR8227 (complaining that the second letter “confirm[s] that issues related to

14

procurement integrity, bias, and organizational conflicts of interest 11 continue to pose challenges

to the on-going procurement under” the Solicitation and that “Loyal Source has been the subject

of targeted, inaccurate communications to [Congress] . . . [in] several articles”). The notice

states that the ultimate goal of the letters is “to manipulate and undermine public perception of

Loyal Source’s performance under the current contract . . . and to pressure and influence

decisionmakers in the open procurement for the follow-on contract,” and it also argues that the

letters and articles “evidence the dissemination of sensitive information about CBP’s source

selection methodology and Phase I evaluation under the on-going Re-compete in violation of the

[PIA] and other antifraud laws and regulations.” Id. Regarding the disclosure of sensitive

information that could possibly violate the PIA, Loyal Source only cited to the November 19,

2023 Washington Post article—not to either letter to Congress. Id. Regarding specific language

from the February 16 letter to Congress, Loyal Source only pointed to language discussing

“staffing shortages, delays in background checks, contractors working without proper clearance,

failure to use the Electronic Medical Records system.” Id. at AR8228 (internal quotation marks

omitted). It then cited to positive performance ratings under the contract. Id.

And to the court, Loyal Source alleges that the language in the letter contains “false

statements, as well as statements reflecting an animus within [CBP] towards Loyal Source”:

• These disclosures in their entirety alarmingly evidence ongoing

failures by CBP Leadership and the CBP Office of Acquisition

to hold Loyal Source accountable despite this contractor’s

record of performance deficiencies.

• All of these whistleblowers have attempted to use regular

internal channels to share their concerns; all have been met

with resistance. . . . Yet, they find it critical that Congress and

oversight entities take swift action . . . and they feel an

imperative duty to inform Congress and oversight bodies of

current wrongdoing.

• Following [an 8-year-old’s death while in CBP custody] the

Department of Homeland Security scapegoated OCMO and its

Chief Medical Officer, Dr. David Tarantino, despite evidence

that Loyal Source was to blame for the death. . . . Loyal

Source and the CBP Office of Acquisition have yet to be held

to account; in fact, Loyal Source has remained the vendor on

the Medical Services Contract.

• [W]e share these protected whistleblower disclosures . . . and

request the following: . . . Conduct thorough and prompt

11

Loyal Source alleged that a competitor had an organizational conflict of interest (“OCI”) in its

GAO protest. Tab 76.a at AR6608. The GAO dismissed that allegation as unripe because of an

ongoing OCI investigation. Tab 84 at AR7490. Loyal Source does not allege an OCI in its

complaint.

15

oversight into the procurement process to select a vendor for

the CBP Medical Services’ Contract recompete, which was

awarded to Vighter in 2022, though the contract transfer has

been delayed since that date, resulting in Loyal Source

continuing to earn hundreds of millions of taxpayer dollars

despite a record of dangerous substandard performance.

ECF No. 37 at 8 (internal quotation marks and citations omitted). Loyal Source also points out

that the letter indicates that the OCMO “had a ‘key role’ in the ‘recompete process, including

serving on the Technical Evaluation Team, where his understanding of Loyal Source’s shortfalls

was reinforced in significant detail through extensive past performance review and discussion,

and the ultimate award of the contract to a different vendor.’” Id. at 19.

c) DHS rationally responded to the two letters.

At the outset, Loyal Source argues that it should receive a presumption of prejudice

because CBP did not investigate whether either of the letters violated the PIA. Id. at 23. But the

court does not presume prejudice. Sys. Stud. & Simulation, 22 F.4th at 997–98. Thus, prejudice

is still a hurdle Loyal Source must clear—and it cannot.

Loyal Source’s notices regarding each letter arrived after DHS moved the procurement

from CBP to DHS OCPO. OCPO moved the procurement on December 11, 2023. Loyal Source

sent its notice regarding the first letter on December 14, 2023, and its notice regarding the second

letter on March 6, 2024. 12 Loyal Source still has not identified any prejudice flowing from a PIA

12

The Government says that the court should disregard the arguments regarding the second letter

because Loyal Source did not promptly notify the contracting officer. When protesting a PIA

violation:

A person may not file a protest against the award or proposed

award of a Federal agency procurement contract alleging a

violation of [the PIA], and the Comptroller General may not

consider that allegation in deciding a protest, unless the person, no

later than 14 days after the person first discovered the possible

violation, reported to the Federal agency responsible for the

procurement the information that the person believed constitutes

evidence of the offense.

41 U.S.C. § 2106. Loyal Source attempted to send its letter to Mr. Blaszko on February 27, 2024

(11 days after the second letter to Congress), but the letter never arrived because Loyal Source

incorrectly typed the contracting officer’s email address. ECF No. 1-10 at 1. Loyal Source then

“included its letter as an attachment to its March 4, 2024 [17 days later] protest at the GAO and

resent the letter to the contracting officer via email on March 6, 2024 [19 days later].” ECF No.

44 at 13 (internal citation omitted).

The members of this court have not all agreed that this statutory time limit applies

to protests filed in this court or just those filed at the GAO. Some judges have applied it

to cases here. See Insight Pub. Sector, Inc. v. United States, 161 Fed. Cl. 760, 812–13

16

violation that the transfer of the procurement did not remedy. As discussed above, DHS has

already acted to mitigate any potential harm—CBP is longer involved in this procurement at all.

What is more, Loyal Source argues that the disclosures are “directly related” to the Washington

Post disclosure. ECF No. 30 at 6–7. That argument further supports the court’s conclusion that

DHS has already mitigated the harm.

Loyal Source also misunderstands the PIA. It argues that the PIA requires the Agency

investigate the alleged bias. ECF No. 37 at 34. But bias is not a PIA violation. See supra

Section III.B. And the fact that CBP is no longer involved at all means there is no potential for

CBP to bias the procurement. Loyal Source, however, insists that DHS must address Mr.

Hendrickson’s “intent to downgrade Loyal Source’s” CPARS ratings. ECF No. 37 at 3. This

argument fails for three reasons.

First, the record does not show “well-nigh irrefragable proof” of prejudicial bias at CBP,

even if it does show bias—a point the court assumes without deciding—in Mr. Hendrickson and

others. Croman Corp. v. United States, 724 F.3d 1357, 1364 (Fed. Cir. 2013) (internal quotation

marks omitted) (quoting Kalvar Corp. v. United States, 543 F.2d 1298, 1301–02 (Ct. Cl. 1976)).

The first letter’s main complaint is that Mr. Hendrickson and his team issued poor CPARS

ratings. The procurement office then upgraded those ratings to “exceptional” and “very good.”

Tab 76.b at AR7414–15. That does not indicate bias, it indicates a difference of opinion. The

process cannot be said to prejudice Loyal Source, at least with regard to that CPARS rating.

Second, Loyal Source argues that a later poor CPARS rating of [ * * * ] prejudiced it.

ECF No. 37 at 28 & n.9. But the validity of that CPARS rating is not before the undersigned; it

is before Judge Bonilla. See Loyal Source Government Services, LLC v. United States, No. 24-

1426. In any event, the record fails to show clear and convincing evidence of bias. When CBP

procurement officials previously concluded a negative CPARS rating was inaccurate, they

changed it—significantly. That no similar upgrade happened the second time does not provide

well-nigh irrefragable proof of bias. If anything, it is more likely that the performance rating is

accurate because the record demonstrates that when an unreasonably low CPARs rating was

submitted, the Agency fixed it. But again, the substance of the CPARS rating is at issue in the

case before Judge Bonilla, not this one.

Third, Loyal Source has not provided any basis to prospectively order the Agency to do

anything regarding the CPARS issue. Filling out a CPARS evaluation is not procurement

activity, it is contract administration. The question for a procurement action will be whether the

past performance evaluation rationally considers the information before it. That evaluation has

not happened yet. Loyal Source has not been prejudiced by any CPARS rating in this

procurement because the past performance evaluation has not happened yet. If Loyal Source can

show prejudicial error in its evaluation after it takes place, it may protest then. But there is no

(2022); Melwood Horticultural Training Ctr., Inc. v. United States, 153 Fed. Cl. 723, 742

(2021); Omega World Travel, Inc. v. United States, 82 Fed. Cl. 452, 467–68 (2008).

Others have not. See McKing Consulting Corp. v. United States, 78 Fed. Cl. 715, 722

n.12 (2007). Because this case does not require the court to resolve this issue, the court

does not attempt to do so.

17

basis to presume that DHS will not properly evaluate Loyal Source’s proposal given the

presumption of regularity and the vetting of the current evaluators by DHS’s OPR and the

contracting officer. In sum, none of Loyal Source’s arguments suffices to establish a PIA or bias

claim based on the letters to Congress.

B. Injunctive Relief

Because success on the merits is required for injunctive relief and Loyal Source has not

prevailed on the merits, the court denies Loyal Source’s motion for an injunction. PGBA, LLC v.

United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004).

C. Motion to Complete and Supplement the Record

Loyal Source also moves to complete and supplement the record. ECF No. 30 at 1. The

court considers each in turn.

Motion to Complete. Loyal Source argues that the Administrative Record is incomplete

because it “does not contain all information considered by the [HCA], relevant documents within

the possession of the CBP, . . . or any documents related to the letters that Troy Hendrickson, . . .

and other CBP employees sent to Congress.” Id. A motion to complete asks “the [c]ourt to

order the agency to complete the record by including omitted documents that the agency did

consider in making its decision.” Advanced Tech. Sys. Co. v. United States, No. 23-1000, 2023

WL 8805707, at *3 (Fed. Cl. Oct. 4, 2023). Loyal Source points to the PIA Memorandum,

where the HCA stated that she “reviewed all information available” to support that the

Administrative Record is missing some of that information. ECF No. 30 at 4 (internal quotation

marks and emphasis omitted) (quoting Tab 59 at AR5752).

Loyal Source seeks additional documents regarding supposed communications with OPR

and the Office of Inspector General. Id. at 6. The Government, however, has made clear that

“[t]here are no other documents to add.” ECF No. 39 at 3. Everything the HCA considered and

the documents that Loyal Source requests are already in the record. For example, Loyal Source

requests adding the two letters to Congress and its notices to the record. ECF No. 30 at 8. But

they already are there. See Tab 76.b at AR7311–42, AR7344–63, AR7400–02, AR8227–30.

The Administrative Record includes documents from CBP and DHS. In the end, Loyal Source

has not pointed to concrete evidence that additional documents should be added to the record

(e.g., documents that are specifically referred to in the record that are absent).

The HCA also reviewed two redacted emails from counsel. See ECF No. 40 at 15 (citing

Tab 53). Loyal Source says that “the Government has waived any privilege that the emails may

have been subject to by relying on those emails to assert that the [HCA]’s review was

reasonable.” 13 ECF No. 44 at 6. But stating that the HCA considered the advice does not put the

13

One email identifies two attachments titled “2023.11.28 – LSGS Concerns Regarding Recent

Articles.pdf” and “Washington Post article.pdf.” Tab 53 at AR5700–02. The other email

appears to be part of the same thread. Id. at AR5701. November 28, 2023 is the date Loyal

18

advice at issue. All the Government is saying is that the HCA did consider the advice of counsel.

Without more, that does not vitiate the privilege.

As for the letters to Congress, “there is nothing with which to complete the record.” ECF

No. 39 at 4. At bottom, Loyal Source has not identified “reasonable, non-speculative grounds

for its belief that [other] documents were considered by the agency and not included in the

record.” See Sara Lee Corp. v. Am. Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008) (internal

quotation marks omitted) (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps

of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006)). Its motion to complete fails.

Motion to Supplement. Loyal Source also requests that “if there are no additional

documents reflecting the [HCA]’s review of the acknowledged PIA violations and other

improprieties, . . . that the Administrative Record be supplemented with the deposition of” the

HCA, Mr. Hendrickson, and “the non-privileged, relevant documents from” the OPR

investigation. ECF No. 30 at 2, 5. “The focus of judicial review of agency action [is] the

administrative record . . . .” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.

Cir. 2009). “Discovery is typically not available in bid protest cases . . . .” Rotair Aerospace

Corp. v. United States, 167 Fed. Cl. 571, 577 (2023). That said, the record may be supplemented

if the “existing record is insufficient to permit meaningful review consistent with the APA.”

Axiom Res. Mgmt., 564 F.3d at 1381. “A court may order depositions . . . when ‘the record [i]s

inadequate to’ explain a contracting officer’s procurement decision,” when “‘required for

meaningful judicial review,’” or when “serious questions as to the rationality of the procurement

decision have been raised.” Off. Depot, Inc. v. United States, 94 Fed. Cl. 294, 296, 298 (2010)

(quoting and citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d

1324, 1337–40 (Fed. Cir. 2001)); Sonoran Tech. & Pro. Servs., LLC v. United States, 132 Fed.

Cl. 475, 478 (2017). A court may “order the agency to include documents that were not

considered in making its decision, but should have been.” Advanced Tech. Sys. Co., 2023 WL

8805707, at *3.

Loyal Source says the HCA’s testimony “is necessary for effective judicial review

because it will address the reasonableness of the actions that the Agency did, and did not, take

when investigating the multiple PIA violations and improprieties at issue in this procurement.” 14

ECF No. 30 at 2. Loyal Source says Mr. Hendrickson’s testimony “is necessary for effective

judicial review” because the Administrative Record “does not include any documents that reflect

investigative efforts or mitigation that are focused on” him, and he has “taken actions in concert

with other unnamed CBP employees designed to harm Loyal Source’s chances of receiving the

award at issue in this protest and that reflect that certain Agency personnel are biased against

Loyal Source.” Id. It also argues that the testimony “would provide information on the issue of

whether the temporary internal transfer of the procurement to a new contracting office is

Source emailed the contracting officer regarding the November 19, 2023 Washington Post

article. Those attachments are public record and are also in the Administrative Record.

14

The requested testimony would be limited, Loyal Source says. See ECF No. 30 at 9.

19

sufficient to protect the integrity of the procurement and to mitigate the harm that Loyal Source

has suffered as a result of the PIA violations.” Id. at 13.

Neither the HCA’s testimony nor Mr. Hendrickson’s is necessary for effective judicial

review in this case. The questions for the court here are whether CBP rationally responded to the

alleged PIA violations, and whether Loyal Source suffered prejudice. The record shows the

steps CBP took to rectify an admitted PIA violation, and for the reasons discussed above, those

actions were more than rational, and Loyal Source has not been prejudiced. As for Mr.

Hendrickson, the information he has is not important because he was removed as the contracting

officer’s representative before the recompete of this procurement and CBP is no longer involved

in any capacity. Loyal Source’s claim that “Mr. Hendrickson . . . [is] in a position to influence

the award decision under the follow-on procurement through ongoing oversight of Loyal Source

under the incumbent contract” again confuses the PIA with other allegations Loyal Source

advances. ECF No. 30 at 11–12. Further, this argument is the same one that the Federal Circuit

squarely rejected in Oak Grove Technologies. There, the trial court admonished the agency for

choosing not to interview the CEO of the awardee of the contract at issue and of two

whistleblowers. Oak Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 116 (2021), vacated

and remanded, 116 F.4th 1364 (Fed. Cir. 2024). The Federal Circuit, in turn, admonished the

trial court for “fail[ing] to acknowledge the twin layers of deference [afforded to the

government] . . . [and instead] substitut[ing] its own judgment as to what constitutes an adequate

investigation.” Oak Grove Techs., 116 F.4th at 1380.

Finally, Loyal Source says “the non-privileged, relevant documents from” the OPR

investigation are necessary for effective judicial review because the “information is relevant to

the improprieties raised in all three counts in Loyal Source’s Complaint and should have been

considered by the Agency when determining whether CBP adequately investigated and mitigated

the harm to Loyal Source and protected the integrity of the procurement.” ECF No. 30 at 2. And

that “the record currently does not include any details as to the scope and results of the

investigation conducted by CBP, including who within CBP violated the PIA and the nature and

extent of the actions those individuals took against Loyal Source.” Id. at 15. The Government is

clear that the “vetting process for the operative evaluation team and source selection authority

. . . did not rely on any information from OPR.” ECF No. 39 at 8. Therefore, the OPR

investigation is not relevant to the review of whether CBP properly responded to the alleged

violations.

The ultimate question in this case is whether CBP and DHS rationally responded to the

PIA violation. They did. None of the additional documents and testimony that Loyal Source

seeks in its motion to supplement weigh on that question, so the motion is denied.

IV. Conclusion

For the foregoing reasons, the court DENIES the Plaintiff’s Motion to Complete and

Supplement the Administrative Record, ECF No. 30, DENIES the Plaintiff’s Motion for

Judgment on the Administrative Record, ECF No. 36, GRANTS the Government’s Cross-

Motion for Judgment on the Administrative Record, ECF No. 40, and DIRECTS the Clerk’s

Office to enter judgment accordingly.

20

It is so ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

21