Gemini Tech Services, LLC v. United States

In the United States Court of Federal Claims

No. 25-1337C

(Filed Under Seal: September 8, 2025)

(Reissued for Publication: September 18, 2025) 1

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GEMINI TECH SERVICES, LLC, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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And *

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ACQUISITION LOGISTICS LLC, *

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Defendant-Intervenor. *

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OPINION AND ORDER

This bid protest involves a challenge to the decision by the United States Army (“the

Army”) to override an automatic stay pursuant to the Competition in Contracting Act (CICA), 31

U.S.C. § 3553(d)(3)(C)(i). See ECF No. 2 at 1. Presently before the Court is Plaintiff’s, Gemini

Tech Services, LLC’s (“Plaintiff’s”) Motion for a Preliminary Injunction which Plaintiff filed on

August 11, 2025. See ECF No. 31. The Government and Defendant Intervenor filed their

respective Responses to the Motion on August 20, 2025, see ECF No. 37-38, and Plaintiff filed a

reply in support of the Motion on August 22, 2025, see ECF No. 39. The Motion is now fully

briefed and ripe for decision. On August 28, 2025, the Court heard oral argument. The Court

has considered all of the parties’ arguments and addresses the issues that are pertinent to the

Court’s ruling in this opinion. For the reasons given below, the Court hereby DENIES

Plaintiff’s Motion.

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The Court issued this opinion under seal on September 8, 2025, and the Court gave the

parties ten days to propose the redaction of competition-sensitive, proprietary, confidential, or

otherwise protected information. The parties filed a document with proposed redactions. ECF

No. 50. Thus, the Court issues the redacted opinion unsealed.

I. Background

On July 18, 2025, the Army awarded a task order to Acquisition Logistics LLC (“ALL”)

to construct, operate, and maintain a new 5,000-capacity short-term detention facility at Fort

Bliss, Texas, on Montana Avenue (“Montana Ave”) for single adults awaiting immigration

proceedings or removal from the United States. See Tab 58. Once the Army completes the

construction of the Montana Ave detention facility, the Army plans to transfer detainees from an

existing detention facility called the Enhanced Hardened Facility (“EHF”), which the Army

states has an insufficient capacity, and transfer the detainees to the new Montana Ave facility.

ECF No. 37 at 17. The base period for the award is three months long, and in that period the

contractor will construct the facility, achieve initial operating capacity for 1,000 detainees, and

continue to expand at a rate of 250 detainees per week. Tab 37, AR 01309.

A. Plaintiff’s GAO Protest

On July 28, 2025, Plaintiff filed its protest before the Government Accountability Office

(“GAO”) challenging the Agency’s decision to award the contract to ALL. AR 00005-7.

Plaintiff raised three allegations in its GAO protest. See AR 00005-7. First, Plaintiff alleged that

ALL failed to comply with two material solicitation requirements: proposing a final site design

and failing to propose critical utilities. AR 00005. Second, Plaintiff argued that the Army failed

to evaluate the quality of offerors’ past performance. AR 00006. Finally, Plaintiff contended

that the Army’s responsibility determination was unreasonable. AR 00006-7.

B. The Army’s Override Decision

In this case, a stay of contract performance in this procurement was triggered pursuant to

31 U.S.C. § 3553(d)(3)(A) when Plaintiff filed its currently-pending protest before the GAO on

July 28, 2025. See ECF No. 2 at 2. At that point, CICA required the contracting officer to

“immediately direct the contractor to cease performance under the contract[.]” 31 U.S.C. §

3553(d)(3)(A)(ii). But instead of doing that, the Army determined it would override the stay and

gave an “oral” direction on July 28, 2025, to continue performance under ALL’s task order.

Under CICA and the AFARS, the Army could override the stay only after executing a

written determination and notifying GAO, but the Army proceeded with performance without

doing either of those things. 31 U.S.C. § 3553(d)(3)(C); AFARS 5133.104(c)(2). The Army

eventually notified GAO of its decision three days later on July 31, executed a determination and

findings (“D&F”) on August 1, and filed that D&F with GAO the following week on August 4,

2025. Although the Army corrected its error, the Court notes that by proceeding with the

contract performance without first notifying GAO and executing a written determination, the

Army violated the statute by failing to comply with the CICA stay which was in place.

Plaintiff correctly points out that if the stay override is not removed, the contract here will

be completed before the GAO reaches its decision on November 5, 2025. Lilly Decl. ¶ 3. To

this point, the Court highlights that though the GAO has a statutory requirement to resolve

protests within 100 days, 31 U.S.C. § 3554(a)(1), the Court wonders why the GAO did not

expedite its decision-making. See 4 C.F.R. §21.10(a) (“Upon a request filed by a party or on its

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own initiative, GAO may decide a protest using an express option”). In the case of contracts

with a short time frame, the competitive system is open to manipulation.

C. The Army’s Determination and Findings Memorandum

The 10-page D&F, dated August 1, 2025, documents the Army’s rationale. Tab 19. It

describes the nature, origin, and urgency of the requirement, as well as the procedures used to

solicit the requirement. AR 00324-328. The D&F went on to document the GAO protest filed

by Plaintiff, noting “[a]fter consultation with legal, it is the Army’s position that the protestor’s

protest lacks merit, and that the Army has strong substantive defenses which it will assert and

upon which it will prevail.” AR 00327. The substance of the D&F determination is discussed in

further detail below.

II. Jurisdiction and Standard of Review

A. Jurisdiction

The Court of Federal Claims possesses jurisdiction to entertain bid protests pursuant to

the Tucker Act, 28 U.S.C. §1491(b)(1). 28 U.S.C. § 1491(b)(4) requires that the Court “review

the Army’s decision pursuant to the standards set forth in section 706 of title 5” of the

Administrative Procedure Act (APA). See Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). Thus, in a bid protest, applying the APA

standard of review, the Court must determine whether the agency’s actions were “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A); 28 U.S.C. § 1491(b)(4); Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350

(Fed. Cir. 2004). Under this standard a court “must sustain an agency action unless the action

does not evince rational reasoning and consideration of relevant factors.” PAI Corp. v. United

States, 614 F.3d 1347, 1351 (Fed. Cir. 2010) (internal quotation marks and citation omitted).

The APA does not permit the court to undertake a de novo review of the agency’s procurement

decision. Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009).

To prevail in a bid protest, a plaintiff must demonstrate: 1) that the procurement decision

“lacked a rational basis”; or 2) “a clear and prejudicial violation of applicable statutes or

regulations.” Impresa, 238 F.3d at 1332-33 (citations omitted). “When a challenge is brought

on the first ground, the test is ‘whether the contracting agency provided a coherent and

reasonable explanation of its exercise of discretion, and the [protestor] . . . bears a heavy burden

of showing that the award decision had no rational basis.’” Banknote, 365 F.3d at 1351 (quoting

Impresa, 238 F.3d at 1332-33); accord Axiom, 564 F.3d at 1381. The rational basis standard

requires the agency’s decision to have “considered the relevant factors” and to be “within the

bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,

Inc., 462 U.S. 87, 105 (1983).

When a protestor challenges a decision as arbitrary and capricious, the Court is “highly

deferential” to the agency’s action. Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1058 (Fed. Cir. 2000). “The court must especially defer to the agency's technical

evaluations, past performance ratings, and other ‘minutiae of the procurement process . . . which

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involve discretionary determinations of procurement officials.’” J.C.N. Const., Inc. v. United

States, 107 Fed. Cl. 503, 510 (2012) (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 449

(Fed. Cir. 1996)). When the Court finds a reasonable basis for an agency’s action, it “stay[s] 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.” Honeywell, Inc. v.

United States, 870 F.2d 644, 648 (Fed. Cir. 1989); see also Bowman Transp., Inc., v. Arkansas-

Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974).

B. Standard of Review for Preliminary Injunctive Relief

The Federal Circuit has held:

To obtain the extraordinary relief of an injunction prior to trial, the movant carries

the burden to establish a right thereto in light of the following factors: 1) that the

movant is likely to succeed on the merits at trial; 2) that it will suffer irreparable

harm if preliminary relief is not granted; 3) that the balance of the hardships tips in

the movant's favor; and 4) that a preliminary injunction will not be contrary to the

public interest.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted). When

considering these factors, “the weakness of the showing regarding one factor may be overborne

by the strength of the others,” while “the absence of an adequate showing with regard to any one

factor may be sufficient . . . to justify the denial” of the preliminary injunction. Id. (citations

omitted). The Federal Circuit also notes, however that “[a]bsent a showing that a movant is

likely to succeed on the merits,” it is unclear “whether the movant can ever be entitled to a

preliminary injunction unless some extraordinary injury or strong public interest is also shown.”

Id.

C. Standard of Review for Merits of an Override Decision

This Court possesses jurisdiction over challenges to CICA stay override decisions

pursuant to the Tucker Act, 28 U.S.C. § 1491(b). Dyncorp Int’l LLC v. United States, 113 Fed.

Cl. 298, 302 (2013) (citing RAMCOR Serv. Grp., Inc. v. United States, 185 F.3d 1286, 1290

(Fed. Cir. 1999)). The Court reviews an agency’s decision to override a CICA stay pursuant to

the standards established by the Administrative Procedure Act (APA), 5 U.S.C. § 706. Dyncorp

Int’l, 113 Fed. Cl. at 302. That is, a protestor challenging an override decision must establish

that the decision was “arbitrary, capricious, or otherwise not in accordance with law.” Id.

(citations omitted).

“The [C]ourt’s role is to determine if the override was based on a consideration of the

relevant factors and whether there has been a clear error in judgment by the agency.” Automation

Techs. v. United States, 72 Fed. Cl. 723, 727 (2006) (citation and quotation marks omitted). The

Court should ask whether there has been “a clear error of judgment,” without substituting its own

judgment for that of the agency. E.g., Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d

1294, 1309 (Fed. Cir. 2004); Chapman Law Firm v. United States, 62 Fed. Cl. 464, 466 (2004)

(reviewing whether the agency had “a rational basis” for its override determination); see also

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Dell Fed. Sys. L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018) (confirming that the

rational basis test applicable to bid protest cases asks “whether the contracting agency provided a

coherent and reasonable explanation of its exercise of discretion.”).

In order to successfully challenge an agency’s decision to override a CICA stay, a

plaintiff must show that the agency’s decision was “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with [the] law.” Reilly's Wholesale Produce v. United States, 73

Fed. Cl. 705, 709 (2006) (citing 28 U.S.C. § 1491(b)(4); 5 U.S.C. § 706(2)(A)). Thus, the first

issue before the Court here is whether the Army’s decision - that urgent and compelling

circumstances which significantly affect interests of the United States will not permit waiting for

the GAO’s decision - was “arbitrary, capricious, or otherwise not in accordance with law.”

Dyncorp Int’l, 113 Fed. Cl. at 302.

The Supreme Court states:

Normally, an agency [decision] would be arbitrary and capricious if the agency has

relied on factors which Congress has not intended it to consider, entirely failed to

consider an important aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

In Reilly’s Wholesale, 73 Fed. Cl. at 711, this Court has identified four factors for

consideration in determining whether an agency properly decided to override a CICA stay:

(1) whether significant adverse consequences would occur absent the override; (2)

whether reasonable alternatives to the override were available; (3) how the potential

cost of proceeding with the override, including the costs associated with the

potential that the GAO might sustain the protest, compared to the benefits

associated with the approach being considered for addressing the agency’s needs;

and (4) the effects of the override on the competition and integrity of the

procurement system.

D. Competition in Contracting Act

The CICA states, in relevant part, as follows:

(A) If the Federal agency awarding the contract receives notice of a protest in

accordance with this section during the period described in paragraph (4)—

(i) the contracting officer may not authorize performance of the contract to

begin while the protest is pending; or

(ii) if authorization for contract performance to proceed was not withheld .

. . before receipt of the notice, the contracting officer shall immediately

direct the contractor to cease performance under the contract and to suspend

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any related activities that may result in additional obligations being incurred

by the United States under that contract.

(B) Performance and related activities suspended pursuant to subparagraph (A)(ii)

by reason of a protest may not be resumed while the protest is pending.

(C) The head of the procuring activity may authorize the performance of the

contract (notwithstanding a protest of which the Federal agency has notice under

this section)—

(i) upon a written finding that—

(I) performance of the contract is in the best interests of the United

States; or

(II) urgent and compelling circumstances that significantly affect

interests of the United States will not permit waiting for the decision

of the Comptroller General concerning the protest; and

(ii) after the Comptroller General is notified of that finding.

31 U.S.C. § 3553(d)(3).

The CICA itself does not define “urgent and compelling circumstances” that would

warrant the override of a CICA stay. See 31 U.S.C. §3551 (not including “urgent and

compelling circumstances” in the list of CICA's defined terms). As Congress prepared to

reconcile various bills that would become CICA, however, the terms “urgent” and

“compelling” were used to describe situations permitting sole-source procurements, and

that use of “urgent” and “compelling” provides at least some sense of the meaning of these

terms. S. Rep. No. 98-50, at 21 (1983) (citations omitted) as reprinted in 1984

U.S.C.C.A.N. 2174, 2194. From the Congressional use of the terms, it would seem that a

threat of immediate harm to health, welfare or safety would appear to qualify as “urgent

and compelling circumstances” for the purposes of CICA stay overrides, just as a threat of

immediate harm to health, welfare or safety would create a situation where the “unusual

and compelling urgency” of agency needs permits a sole-source procurement. See id.

E. The Army Federal Acquisition Regulation Supplement

The AFARS, adopting the Reilly’s Wholesale factors, states what the Contracting

Officer must do:

(1)(A) The Contracting officer must prepare a determination and findings

(D&F) for HCA approval when it is necessary to request authorization to

award a contract notwithstanding a protest. This authority is non-delegable.

The D&F must clearly address –

(1) Whether significant adverse consequences will necessarily occur if the

stay is not overridden;

(2) Whether reasonable alternatives to the override exist that would

adequately address the circumstances presented;

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(3) How the potential costs of proceeding with the override, including the

costs associated with the potential that GAO might sustain the protest,

compare to the benefits associated with the approach being considered for

addressing the agency’s needs; and

(4) The impact of the override on competition and the integrity of the

procurement system.

AFARS 5133.104(b)(1)(A); Reilly’s Wholesale, 73 Fed. Cl. at 711.

I. DISCUSSION

The focal point of this protest is the Army’s D&F, which documents the Army’s

consideration of the basis for and effect of the proposed override of the CICA stay. The Army’s

D&F specifies that the Army determined that “urgent and compelling circumstances which

significantly affect interests of the United States will not permit waiting for the decision of the

GAO’s decision in the protest.” 2 AR 333; 31 U.S.C. § 3553(c)(2). The Army explained that this

contract aligned with priorities of Executive Order 14159, which directs for the efficient and

expeditated removal of aliens from the United States. AR 00328.

The Army identified that the United States Immigration and Customs Enforcement’s

(“ICE’s”) ability to execute the executive order was impeded by a detention capacity shortfall.

Id. Specifically, ICE was managing 57,600 detainees with only 41,500 beds, “creating

significant operational strain.” AR 00324. The Army found that Montana Ave detention facility

would directly address this compelling need. Id., AR 00328. Further, the Army explained that

the existing detention capacity crisis created overcrowding, “demand[ing] immediate action to

ensure humane treatment, appropriate care, and legal compliance” for all detainees. Id. The

Army thus stated that any delay would hinder ICE’s national security and public safety efforts

while also harming detainees. Id.

The Court, relying on the test articulated by the court in Reilly’s Wholesale, which is

mirrored in AFARS 5133.104(b)(1)(A), will evaluate whether the Army’s decision to override

the stay is arbitrary or capricious by considering:

(1) whether significant adverse consequences would occur absent the override; (2)

whether reasonable alternatives to the override were available; (3) how the potential

cost of proceeding with the override, including the costs associated with the

potential that the GAO might sustain the protest, compared to the benefits

associated with the approach being considered for addressing the agency’s needs;

and (4) the effects of the override on the competition and integrity of the

procurement system.

Reilly’s Wholesale, 73 Fed. Cl. at 711; AFARS 5133.104(b)(1)(A).

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Although the Army references the “best interests” factor in the D&F, the overarching

reason given here is that “urgent and compelling” reasons warrant an override of the automatic

CICA stay. AR 333.

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Plaintiff makes four arguments in support of its Motion for a Preliminary

Injunction: (1) the D&F fails to establish that significant adverse consequences will

necessarily occur if the stay is not overridden; (2) the D&F ignores reasonable alternatives

that would adequately address the circumstances presented; (3) the D&F fails to establish

that the cost of implementing the stay would exceed the cost of an override; (4) the D&F

fails to establish that an override will not damage competition and the integrity of the

procurement process. ECF No. 6 at 13-24.

The Government and Intervenor assert that the CICA stay override was rational and

that each of Plaintiff’s arguments fail in substance or because Plaintiff asks this Court to

second guess the agency’s rational. The Court considers each of Plaintiff’s arguments

below.

1. The Army Rationally Considered Whether Adverse

Consequences Would Necessarily Occur if the Stay were not

Overridden

First, Plaintiff argues that the Army’s D&F did not identify adverse consequences that

were specific enough to justify overriding the stay. Instead, Plaintiff asserts that the adverse

consequences identified by the Army’s D&F were speculative and do not meet the standard of

“urgent and compelling.” ECF No. 6 at 20 (quoting AT&T, 133 Fed. Cl. at 556). 3 The

Government and Intervenor contend, however, that the Army’s D&F details at length the

significant consequences that will necessarily occur absent an override, and the Army rationally

concluded that “urgent and compelling” circumstances exist which justify overriding the stay.

The Court agrees.

The Army’s D&F states the following:

(1) Whether significant adverse consequences will necessarily occur if the

stay is not overridden:

Significant adverse consequences that may occur without this override are laid

out in detail in the attached mission impact statement, which I hereby incorporate

into this document. See Tab 7 (Mission Impact Statement). Specifically, a

continued stay will directly exacerbate the existing detention capacity crisis,

hindering ICE's ability to effectively manage the influx of detainee apprehensions.

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Plaintiff argues that the United States is partially responsible for the detention capacity

crisis when ICE previously awarded and terminated a contract for the Montana Ave detention

facility while the Army also reduced capacity at the EHF. ECF No. 6 at 15. This argument,

however, fails to acknowledge the developing facts or show error in the Army’s reasoned

consideration. If the Army found that it needed to cancel its prior solicitation because it found a

flaw, that decision does not mean that the Army’s needs here are not still urgent. As the Army

described, the detention capacity crisis is “immediate and escalating,” building throughout the

year due to exigent circumstances to address the President’s declared national emergency. Tab

21, AR 353.

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This will result in increased operational risks, potential legal challenges related to

overcrowding, and a heightened strain on resources. The delay will also disrupt

planned operational deployments and enforcement activities reliant on adequate

detention capacity, directly impacting ICE’s core mission as outlined in the SOO.

The current overcapacity situation is unsustainable and demands immediate action

to ensure humane treatment, appropriate care, and legal compliance.

AR 00328. In making its argument, Plaintiff relies on the Court’s decision in AT&T

Corp. v. United States, 133 Fed. Cl. 550 (2017), to argue that the agency is required to

identify not “potential risks,” but consequences that will “necessarily occur.” ECF No. 6

at 13 (citing AT&T, 133 Fed. Cl. at 556). AT&T, however, is only persuasive authority,

and the facts in that case are distinct. In AT&T, the Court found that the agency’s

conclusions regarding the schedule delay, cost, quality, and mission impact on the 2020

Census were speculative, and did not involve threats to health, welfare, or safety. Id.

The Court found that the agency overstated the certainty of its own schedule, which made

allowances for, inter alia, weather and job market conditions. Id.

After considering the Army’s D&F, it is clear that the concerns listed here are specific

and concrete and not speculative as Plaintiff asserts. The D&F and the supporting Mission

Impact Statement clearly set forth the significant adverse impact of staying performance. See

generally AR, Tabs 19, 21. First, the Mission Impact Statement notes that there are several

Presidential directives addressing the criticality of the services being acquired under this

contract:

- Proclamation 10886 directs the Secretary of Defense to support the Department

of Homeland Security “in obtaining complete operational control of the southern

border of the United States . . . [and] to take all appropriate action to facilitate the

operational needs of the Secretary of Homeland Security along the southern

border.”

- EO 14159 “directs the Secretary of Homeland Security to ensure efficient and

effective removal of aliens from the United States as a means to provide for the

safety, security, and financial and economic well-being of Americans.”

- EO 14165 provides that it is the policy of the United States to detain, “to the

maximum extent authorized by law, aliens apprehended on suspicion of violating

Federal or State law, until such time they are removed from the United States and

ordered the Secretary of Homeland Security to take all appropriate action to do

so.”

AR 00350. Turning to the specific adverse consequences, the D&F notes that ICE is presently

“managing approximately 57,600 detainees with a capacity of only 41,500 beds funded in

FY25.” AR 00324. While the overage is being maintained by state-funded facilities, “ICE has

many outstanding final remove orders and convicted criminals that cannot be detained due to

capacity constraints.” Id., see also AR00352 (“Without this override there will be a detrimental

impact on National Security due to the decreased capacity to support ongoing illegal alien

detention and removal operations.”). According to the Mission Impact Statement, suspension of

performance “will have a detrimental impact on ICE’s ability to manage the current detention

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surge, leading to increased costs associated with identifying and securing alternative, less-than-

ideal detention solutions, and potentially compromise national security and public safety.”

AR 00353.

The facts here also differ from AT&T in that the circumstances involve threats to health,

welfare or safety and were not speculative consequences, and thus qualify as “urgent and

compelling,” circumstances which warrant overriding the stay. Here, the Army and ICE were

charged with “an urgent and compelling requirement to enforce U.S. immigration laws and

ensure public safety as outlined in the President's Executive Orders 14159 (Protecting the

American People Against Invasion) and 14165 (Securing Our Borders).” A delay in performance

would “critically jeopardize ICE's ability to manage the escalating detention surge.” Id.

The Army explained that delaying performance of the contract by up to 100 days not only

allows the threat to national security to continue unmitigated during that delay, and the resulting

delay to completion of the facility, but also jeopardizes the humanitarian concerns of detainees

subject to overcrowding. Tab 19, AR00328; Tab 20, AR00346-47; Tab 21, AR00353.

The Army found that the performance was necessary because other ICE facilities were

overcrowded, more detention space was necessary to address the President’s national emergency

findings, and overcrowding directly impacted public safety. In sum, the Army appropriately

measured the “urgency of the procurement situation,” and rationally determined that an

“immediate threat of harm to health, welfare or safety exists.” See PMTech, 95 Fed. Cl. at 346.

Finally, for the Court to require an agency to demonstrate with absolute certainty that

future consequences will occur dramatically “overstates what is required by the arbitrary and

capricious standard.” Dyncorp Int’l, 113 Fed Cl. at 302 n.4; see also, e.g., Safeguard Base

Operations, LLC v United States, 140 Fed. Cl. 670, 701-02 (2018) (finding the first Reilly’s

Wholesale factor met based on identified consequences that were less than certain); Beechcraft

Defense Co., LLC v. United States, 111 Fed. Cl. 24, 31 (2013) (same); EOD Technology, Inc. v.

United States, 82 Fed. Cl. 12, 20 (2008) (same). Here, it is clear to the Court that the Army

considered adverse consequences that would necessarily occur absent a stay override and

rationally determined that a stay override was necessary.

2. The Army Rationally Considered Whether Reasonable Alternatives

Exist that Would Adequately Address the Circumstances Presented

Plaintiff argues that the Army failed to consider all of the available alternatives to an

override of the automatic stay. According to Plaintiff, the Army could have used the EHF

facility to house detainees under the previous contract, could have used the EHF facility by

creating a bridge contract, or could have considered the use of other facilities such as state

facilities.

Concerning this factor, the D&F states the following:

(2) Whether reasonable alternatives to the override exist that would

adequately address the circumstances presented:

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All alternatives to the CICA override have been considered, but, as provided

below, none are determined to be reasonable. Because there is no existing bridge

contract, relying on temporary solutions or ad-hoc arrangements to secure

additional bed space will be prohibitively expensive and logistically complex.

Utilizing the existing Enhanced Hardened Facility (EHF) is not a viable option.

The EHF was originally designed and constructed for a capacity of 2500

detainees. On May 24, 2025, the Secretary of Defense elected to decrease the

scope of that facility to a maximum capacity of 1000 detainees and it is operating

at or near this maximum already. Subsequent to that de-scoping, the number of

detainees that ICE is administering has increased drastically. Increasing the

capacity of the EHF beyond 1000 detainees will require significant structural

modifications and expansion, constituting a substantial change to the scope of

work. Such a change will necessitate a new competitive procurement to ensure

fairness and compliance with procurement regulations. Attempting to initiate a

new procurement will result in an unacceptable delay of at least six months,

further exacerbating the operational challenges and the existing humanitarian

concerns related to overcrowding, directly contradicting the urgent need outlined

in the SOO. Accordingly, this contract is not a reasonable alternative to an

override.

AR 00329.

The Army’s D&F documents its consideration of alternatives to overriding the stay

before rationally concluding that none would adequately address the urgent circumstances. Tab

19, AR 00327, 329. There is no incumbent contractor to which the Army could have considered

awarding a bridge contract for the Montana Ave detention facility because it is a new detention

facility to address an emerging, critical national security concern. Id.; Tab 20, AR 00347. Any

other alternative would, thus, necessarily involve the award of a new contract, task order, or

other contractual mechanism.

Although Plaintiff asserts that a bridge contract utilizing the existing EHF would be a

reasonable alternative, the Army’s D&F explains that this option is not a reasonable alternative.

Tab 19, AR 00329; Tab 20, AR 00347. As the Army explained, the EHF was operating near its

maximum capacity of 1,000 detainees at the time of the override, unable to take in the additional

5,000 more that the Montana Ave detention facility would scale up to during the GAO protest.

Tab 19, AR 00329; Tab 20, AR 00347. Further, the Army stated that the EHF could not be

expanded beyond 1,000 detainees without major modification and a new competitive

procurement, requiring significant delays. Tab 19, AR 00329; Tab 20, AR 00347. Plaintiff

disagrees, arguing that it has immediate capacity to increase capacity without modification or

procurement. ECF No. 6 at 19. This, however, is mere disagreement with the Army’s reasoning,

not sufficient to show that the Army lacked a rational basis. See Automation, 72 Fed. Cl. at 727.

Further, the EHF, which is a different type of facility than the soft-sided detention facility being

provided through this procurement, would at best be a part of the solution, rather than an

alternative.

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During the course of the proceedings at this Court, the Army closed operations at the

EHF on August 26, 2025, as the Army did not exercise option period 5 to extend the contract.

ECF No. 43-1 at 1-2. 4 The Court notes that this decision blind-sided the Court and Plaintiff.

There was no hint in any of the submissions to the Court that the contract would be allowed to

expire. Although the EHF is not the subject of this procurement, the contract was clearly

relevant to the proceedings here, and the Army could have extended that contract by 30 days

until the Court issued its determination. Nevertheless, because the EHF is now closed, it is

further clear that this option is not a reasonable alternative as it would require the Army to create

a new contract to continue operations at EHF in addition to all the modifications that the Army

noted would be necessary.

During oral argument, the Government asserted that another reason that the Army

decided that the EHF was not a reasonable alternative was that it did not meet the standards of

the new Montana Ave facility. The Government argued that the new facility is more humane, as

it is intended for longer periods of stay. Also, the Government states that the new facility

complies with federal standards, including “guarantee[ing] humane treatment, protection from

harm, appropriate medical and mental health care, and the rights and protections to which

detainees are entitled.” Tab 19, AR 00328; see also Tabs 38-48 (applicable standards).

Plaintiff asserted during oral argument that the D&F did not support its assertion that the

EHF was not a reasonable alternative. The Court, however, notes that the Army did provide

specific reasons for why the EHF was not a reasonable alternative. First, the Army states that the

EHF is not a viable option because the facility does not meet the current needs of the Army and

would require “significant structural modifications,” to the existing facility. In addition, the

Army states that this delay would “further exacerbat[e] the operational challenges and the

existing humanitarian concerns related to overcrowding, directly contradicting the urgent need

outlined in the SOO.” Although Plaintiff correctly asserts that the D&F does not state that the

EHF did not provide humane and safe conditions as required by the new standards for this

solicitation, the D&F states that the new standards ensure humane treatment, “the current

overcapacity situation is unsustainable and demands immediate action to ensure humane

treatment, appropriate care, and legal compliance.” AR 00328. Thus, in the D&F, the Army

found that the EHF as it currently stands would not meet the standards necessary for this contract

and thus determined that it would not be a reasonable alternative.

It is important to note that nothing in the record establishes otherwise that the EHF would

actually meet the standards required by this new solicitation and thus be a reasonable alternative

to the Montana Ave facility. Further, Plaintiff does not provide any support making such an

assertion. Thus, the Court does not have reason to doubt the reasoning of the Army. See

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed.

Cir. 2001) (“the test for reviewing courts is to determine whether the contracting agency

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When the Court became aware that the EHF would close on August 26, 2025, the Court

issued an order, ECF No. 41, staying the closure of the EHF. The Court then held a hearing

concerning the closing of operations at EHF on August 27, 2025, and for the reasons stated on

the Record, the Court lifted the temporary stay. ECF No. 45.

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provided a coherent and reasonable explanation of its exercise of discretion and the disappointed

bidder bears a heavy burden of showing that the award decision had no rational basis.”)

Further, in response to the Court’s request for more information concerning the EHF, the

Army submitted a declaration from Master Sergeant Kailey A. Good-Hallahan, the contracting

officer who wrote the D&F here. The declaration states:

One of the Department of Defense’s concerns is that the EHF is only required to

comply with the Customs and Border Protection National Standards on Transport,

Escort, Detention, and Search (CBP-TEDS), which is expressly incorporated into

the Performance Work Statement, paragraph 6.17. These standards are lower than

the National Detention Standards that the Fort Bliss Montana Ave detention facility

is required to meet. Per CBP-TEDS standards, detainees should not be held for

longer than 72 hours. These standards focus on basic care during initial

apprehension, lacking the robust requirements for medical care, legal access,

recreation, and other protections critical for longer-term detention. In contrast, the

Fort Bliss Montana Avenue facility is built to comply with ICE’s National

Detention Standards 2025, a comprehensive framework designed to ensure the

health, safety, and rights of individuals in extended ICE custody. Relying on TEDS

for operations beyond their intended short-term scope raises serious concerns about

detainee welfare and the adequacy of the standards being applied. To provide one

tangible example, the EHF does not have beds for illegal aliens housed there.

Instead, they sleep on floor mats. Alternatively, at the Montana Avenue detention

facility, which is designed for longer holds, each illegal alien will have a bed.

ECF No. 43-1 at 1-2. This document, although not part of the D&F shows in further detail the

information that was before the Army at the time it made its decision. The new standards for this

solicitation which the Army states would ensure safety and humane conditions were referred to

in the D&F, AR 00324, but this declaration provides more insight into the differing standards of

the new solicitation and the EHF itself. Although this additional evidence does not affect the

Court’s decision, it does provide further background for what was before the Army when it made

its decision. This declaration shows that the standards at the EHF facility are lower standards

than required at the new Montana Ave facility, thus showing more insight into the Army’s

decision. This Court has held that the record includes any evidence that the agency relied upon

or considered in reaching its procurement decision, thus this evidence is relevant to the case at

hand. Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed. Cir. 2000) (the

record includes everything “before the decision maker.”); Joint Venture of Comint Sys. Corp. v.

United States, 100 Fed. Cl. 159, 168-69 (2011) (In other words, the record must include all

materials that were “directly or indirectly considered by the agency decisionmakers”).

Thus, for the reasons given above, the Court holds that the Army’s decision that the EHF

was not a reasonable alternative is a rational decision. The Federal Circuit has held that, “‘[i]f

the court finds a reasonable basis for the agency’s action, the court 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.’” Honeywell, Inc., 870 F.2d at

648 (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).

13

Finally, Plaintiff contends that the Army should have considered using state facilities.

ECF No. 6 at 20. The Army clearly stated that “[a]ll alternatives to the CICA override have been

considered, but . . . none are determined to be reasonable.” Tab 19, AR 00329; see Analysis

Group, 2009 WL 3747171, at *5 (“CICA’s command is for ‘reasonable alternatives’ to exist, not

just ‘alternatives.’”); Reilly’s Wholesale, 73 Fed. Cl. at 711 (holding that an agency must

consider “whether reasonable alternatives to the override exist that would adequately address the

circumstances presented”) (emphasis added).

Specifically, regarding the adequacy of state facilities, in its response brief the

Government attached the declaration of Colonel Randy J. Garcia, Senior Contracting Officer for

the Mission and Installation Contracting Command Field Directorate Office-Fort Sam Houston,

which explains “[o]nly a Federal facility can guarantee compliance with the various standards

regulating the conditions in which illegal aliens will be held.” Col. Garcia Decl. ¶ 5. Thus, the

Army knew that this alternative was not reasonable because in a state facility the United States

“cannot ensure illegal aliens are detained in conditions that meet Federal standards.” Id.

Although this evidence is not explained in the D&F itself, the declaration does provide

information that the Army would have been apprised of when it made its decision. See Joint

Venture, 100 Fed. Cl. at 168-69 (In other words, the record must include all materials that were

“directly or indirectly considered by the agency decisionmakers”). Thus, for the reasons given

above, the Army’s D&F rationally concludes that there were no reasonable alternatives to the

Montana Ave detention facility to meet the needs of the present detainee crisis, and, therefore,

meets the APA standard.

3. The Army Rationally Considered How the Potential Costs of the

Stay Override Compare to the Benefits Associated with the

Approach Being Considered for Addressing the Agency’s Needs

is Not Contrary to the Evidence

Plaintiff asserts that where an agency provides no meaningful “explanation or

breakdown” for the dollar values allegedly justifying a CICA override, that “indicat[es] to

the Court that the Agency did not conduct a significant analysis of the cost and benefits of

proceeding with the override.” ECF No. 6 at 21 (quoting AT&T, 133 Fed. Cl. at 557

(rejecting override where agency provided “no reasoning to demonstrate that the benefits

of the override outweigh the costs of proceeding with the CICA stay in place”)). The

Army’s D&F documents its consideration of the potential costs of proceeding with the

override, as well as its comparison of those costs to the benefits of doing so. Specifically,

the D&F states:

(3) How the potential cost of proceeding with the override compares

with the costs associated with the potential that the GAO might sustain

the protest:

In the event the override is authorized, and the protestor prevails in its

protest, the Army will have expended the costs of performance up to 100

days. However, the cost of not overriding the stay and continuing to operate

with a significant detention capacity shortfall, coupled with the operational,

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national security, and legal risks detailed in the Mission Impact Statement,

are estimated to be significantly higher -in excess of $500M. This figure

includes potential legal liabilities, increased transportation costs for

transferring detainees, and the cost of securing emergency, short-term

detention solutions. ALL projects that a stop-work order implemented at

100 days, approximately on 5 November 2025, would result in

approximately $403 million in liabilities. This estimate includes $-----------

for base period mobilization, $---------- for service Contract Line Item

Numbers (CLINs), $--------- for option period 1 mobilization, $----------- for

35 days of service within option period 1, and $------------- for

demobilization.

ALL has provided the following cost projections in the event of contract

termination on or about 1 August 2025. Termination would result in

approximately $----------- in liabilities. All’s submitted mobilization quote

is $----------------. As of 28 July 2025, ALL estimates mobilization is 57%

complete, factoring in existing supplies and outstanding orders. Based on

this progress, the estimated cost owed to ALL for completed mobilization

efforts is approximately $-------------, and $-------------- for demobilization.

These costs must be considered in light of a critical and escalating situation.

The Department of Homeland Security (OHS) reports 1.5 million active

final removal orders, yet only 41,500 federally funded bed spaces are

currently available, necessitating reliance on state-funded facilities to

address the shortfall. Current detention facilities are critically overcrowded,

housing 57,600 individuals. This overcrowding creates unsafe conditions

for both U.S. Immigration and Customs Enforcement (ICE) agents and

those in custody, increasing the risk of altercations, health crises, and

potential security breaches. Failure to address this capacity gap poses

significant operational, security, and humanitarian risks, demanding

immediate attention and resolution. Therefore, the benefits of overriding the

stay and proceeding with performance greatly outweigh the potential costs

of not doing so.

AR 00329-330.

The Army found that “the cost of not overriding the stay and continuing to operate

with a significant detention capacity shortfall, coupled with the operational, national

security, and legal risks detailed in the Mission Impact Statement, are estimated to be

significantly higher [than the costs of performance up to 100 days]—in excess of $500M.”

AR 00329. According to the Army, this figure includes “potential legal liabilities,

increased transportation costs for transferring detainees, and the cost of securing

emergency, short-term detention solutions.” 5 Id.

5

The Mission Impact Statement expounds on this, providing:

15

If the stay is overridden, however, and Plaintiff’s GAO protest proceeds to a

decision after 100 days, ALL has estimated that it will have incurred over $403 million in

liabilities. See AR 00329. Plaintiff criticizes these cost estimates as insufficient, but that

alone is not adequate to establish that the Army acted irrationally.

Further, the Court has held that a complete quantification of costs is not necessary

when there are “significant risks that would result from not overriding the stay.” See

Superior Helicopter LLC v. United States, 78 Fed. Cl. 181, 193 (2007) (sanctioning

agency’s conclusion that the “inability to guarantee helicopter availability and therefore to

prevent the loss of life and property . . . outweigh the ramifications of any sustained bid

protest”); see also Safeguard Base Operations, LLC v. United States, 140 Fed. Cl. 670, 705

(2018) (finding agency override reasonable when “the Agency considered the possibility

of the GAO sustaining Safeguard's second post-award bid protest and[,] . . . was aware that

it would incur any costs associated if such a result at the GAO should occur, but concluded

the total risks to the Agency were worth overriding the stay”). Indeed, the D&F here

explains that the costs must be considered in conjunction with the critical overcrowding

situation “increasing the risk of altercations, health crises, and potential security breaches.”

AR 00330.

It appears that Plaintiff’s contentions focus on the monetary explanation of the cost

analysis, arguing that the Army’s numbers are unexplained and thus fail to demonstrate

that the cost of implementing the stay would exceed the supposed costs of an override.

Plaintiff cannot show that the Army’s estimates are flawed, however, as these humanitarian

and security risks are also a legitimate part of the calculation when considering the costs

of a stay of performance. See Fisher Sand & Gravel Co., 143 Fed. Cl. at 253 (finding it

appropriate for the Army to consider “the nonmonetary costs associated with a stay of

performance (humanitarian and border security concerns) and found them too great to

ignore. . . . The D & F's statement that the costs associated with these problems are not

strictly measurable in extra taxpayer dollars should the agency be forced to recompete is

rational.”). The Army’s D&F makes clear that the urgent and compelling national security

concerns far outweigh any short-term monetary costs the Army might have to bear if it

later needs to change course in light of the GAO’s resolution of the protest. See STG, 147

Fed. Cl. at 809 (“The court defers to the Army’s conclusion about the acceptable risk to

the Army if [protestor]’s protest is successful.”); Tab 19, AR 00329. Accordingly, the

Army rationally considered the potential costs of proceeding with the override against the

benefit of doing so, providing a coherent and reasonable explanation.

On 1 August services begin to support the operations of illegal aliens (IA).

These services include billeting, armed guards, unarmed guards, medical

services, meals, transportation and detention process support services. If

services are shut off, the vendor cannot continue services and any existing

IA would have to be transferred to another facility, incurring additional

costs. This would further prevent it from reaching its essential initial

operating capacity of 1000 detainees by 17 August 2025.

AR 00352.

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4. The Army Rationally Considered the Impact of the Override on

Competition and the Integrity of the Procurement System

Plaintiff next argues that the Army does not present enough evidence to show that the

impact of the override on competition and the integrity of the procurement system, and therefore

the Army’s D&F is arbitrary and capricious. Although Plaintiff argues that the Army does not

offer enough explanation here, Plaintiff does not show that the Army’s rational is arbitrary or

capricious. Concerning this issue, the D&F states:

(4) The impact of the override on competition and integrity of the

procurement system:

The source selection process for the WEXMAC 2.0 contract has been concluded,

and an awardee has been identified. Approving the requested override of the stay

will not compromise competition for future requirements, as demonstrated by the

robust competition throughout Phases 1 and 2 of the WEXMAC 2.0 solicitation.

All vendors approved for the base WEXMAC contract have undergone thorough

pre-vetting and have been determined to be fully capable and responsible, meeting

the established price ceiling. This determination is predicated on the urgent

operational needs of U.S. Immigration and Customs Enforcement and the critical

national security implications stemming from the current detention capacity crisis.

The Army remains steadfastly committed to a fair and transparent procurement

process and will provide a comprehensive response to the Government

Accountability Office addressing the concerns raised in the protest. This override

is a narrowly tailored decision, driven by compelling operational imperatives and

does not reflect a disregard for fair competition. Given the substantial progress

already achieved by the current awardee and the nature of the work completed to

date, transitioning performance to a new vendor would present significant logistical

and operational challenges. Replicating the established infrastructure, personnel,

and ongoing operational tempo would introduce unacceptable risk to mission

continuity and potentially result in substantial delays and increased costs. A

seamless transition is not reasonably achievable within the required timeframe, and

any attempt to do so would jeopardize the critical detention capacity needed to

address the current national security imperative. Should GAO sustain Gemini's

protest, the Army will consider GAO’s decision and any recommended corrective

action and determine a way forward at that time.

AR 00330-331.

The Army’s D&F explains that a full competitive award process has already been

completed and that the Army comprehensively considered Plaintiff’s protest allegations at the

time it was considering whether to override the CICA stay. By seriously considering the protest

allegations and any available reasonable alternatives, the Army reasonably “considered the

impact that overriding the CICA stay would have on the integrity of the procurement system.”

STG LLC v. United States, 147 Fed. Cl. 790, 810 (2020) (finding Army acted reasonably when

“[i]n addition to considering the merits of the protestor's arguments to determine whether the

Army believed the arguments had merit before proceeding with the override, as noted above, the

17

contracting officer also reached out to the incumbent contractor GDIT to gauge if a bridge

contract was feasible”).

While the Army conducted a two-phased competitive procurement and considered

Plaintiff’s protest allegations before overriding the CICA stay, the Army’s rationality is further

bolstered here where the procurement supports combatting what the President has deemed an

issue of national security. Pursuant to Title 28 United States Code, Section 1491(b)(3), this

Court must give due consideration to the weighty national security concerns implicated in this

project. See 28 USC 1491(b)(3) (“[i]n exercising jurisdiction under this subsection, the courts

shall give due regard to the interests of national defense and national security and the need for

expeditious resolution of the action.”). Thus, the Court holds that the Army’s explanation of the

impact of the override on competition and the integrity of the procurement system was not

arbitrary and capricious.

Because Plaintiff cannot demonstrate that the Army acted in a manner that was arbitrary

and capricious or not in accordance with law, Plaintiff has not established a likelihood of success

on the merits. Because Plaintiff has not demonstrated a likelihood of success on the merits,

which is a necessary showing to establish entitlement to a preliminary injunction, the Court

DENIES Plaintiff’s Motion for a Preliminary Injunction. Somerset Pharm., Inc. v. Dudas, 500

F.3d 1344, 1346 (Fed. Cir. 2007) (citing Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357

F.3d 1319, 1324-25 (Fed. Cir. 2004) (explaining that to establish entitlement to a preliminary

injunction, a plaintiff must prevail on the first factor—the likelihood of success on the merits)).

Although the Court was disappointed with the Army’s actions in this procurement,

because there is a reasonable basis for the Army’s decision, the Court must “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.” Honeywell, Inc., 870 F.2d at

648.

II. CONCLUSION

For the reasons given above, the Court DENIES Plaintiff’s Motion for a Preliminary

Injunction. In light of this Opinion, the Complaint is DISMISSED. The Clerk is directed to

enter judgment accordingly.

IT IS SO ORDERED.

s/Edward J. Damich

EDWARD J. DAMICH

Senior Judge

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