Dyncorp International LLC v. United States

In the United States Court of Federal Claims

No. 13-689C

(Originally Filed: October 29, 2013)

(Reissued: November 5, 2013)*

**********************

DYNCORP INTERNATIONAL LLC,

Plaintiff,

and

KELLOGG, BROWN & ROOT

SERVICES, INC.

Plaintiff-Intervenor,

Bid Protest; CICA stay override;

v. 31 U.S.C. § 3553.

THE UNITED STATES,

Defendant,

and

PAE GOVERNMENT SERVICES, INC.

Defendant-Intervenor.

**********************

Richard Paul Rector, Washington, DC, and Seamus Curley,

Washington, DC, argued for plaintiff. Jason Andrew Carey, Washington, DC,

for plaintiff-intervenor.

Elizabeth Anne Speck, Civil Division, Department of Justice,

Washington, DC, with whom are Stuart F. Delery, Assistant Attorney General,

*

This opinion was originally filed under seal. Publication was deferred

pending the parties’ review for redactions of protected material. The parties

did not identify any material that needed to be redacted. This opinion is now

prepared for release.

Bryant G. Snee, Acting Director, and Patricia M. McCarthy, Assistant

Director, for defendant. Robert Stephen Nichols, Washington DC, and Anuj

Vohra, Washington, DC, argued for defendant-intervenor.

_________

OPINION

_________

BRUGGINK, Judge.

This is an action challenging a Competition in Contracting Act

(“CICA”), 31 U.S.C. § 3553 (2006), override decision by the Department of

State (“DOS”). Currently before the court are plaintiff’s motion to supplement

the administrative record, plaintiff and plaintiff-intervenor’s joint motion for

reconsideration of our denial of plaintiff’s motion for a preliminary injunction,

and the parties’ cross-motions for judgment on the administrative record. The

motions are fully briefed, and we heard oral argument on October 23, 2013.

As we notified the parties at the conclusion of oral argument, and for the

reasons more fully explained below, we deny plaintiff and plaintiff-

intervenor’s joint motion for reconsideration, grant in part and deny in part

plaintiff’s motion to supplement the administrative record, grant defendant’s

2

and defendant-intervenor’s1 motions for judgment on the administrative

record, and deny plaintiff’s and plaintiff-intervenor’s cross-motions.

BACKGROUND

Plaintiff, Dyncorp International LLC (“Dyncorp”), was one of the

companies that bid on solicitation number SAQMMA-12-R-0130 to provide

Baghdad Life Support Services (“BLiSS”) to the Department of State. The

services covered by the contract include, among other things, food

procurement, food service, fuel, fire and first responder services, aircraft

operations, security systems operation and maintenance, waste management,

and sensitive equipment demilitarization. The BLiSS contract replaces at least

five contracts, all performed in Iraq, and several inter-agency agreements.

These contracts include:

1

Defendant and defendant-intervenor objected to the motion to

intervene as a plaintiff filed by Kellogg, Brown & Root (“KBR”), an

unsuccessful offeror to the BLiSS procurement, on the ground that KBR’s

protest at the Government Accountability Office (“GAO”) was not filed in

time to trigger an automatic stay. See 31 U.S.C. § 3553(d) (stating that the stay

is automatically triggered when a protest is filed at GAO and notice is given

to the agency on or before “the date that is 10 days after the date of contact

award”). KBR filed its protest and DOS was notified of KBR’s protest on

Monday, September 9, 2013, which was the eleventh calendar day following

contract award. In Unisys Corp. v. United States, this court previously held

that an “agency only has a duty to suspend performance under § 3553 if it

receives notice from GAO within ten calendar days of contract award.” 90

Fed. Cl. 510, 518 (2009). However, neither the current CICA stay provision

nor its implementing regulations employ the term “calendar days.” See 31

U.S.C. § 3553(d); 48 C.F.R. § 33.104 (2013). Rather, 31 U.S.C. § 3555(b)

provides that, “in computation of any period described in this subchapter . . .

(2) the last day after such act, event, or default be included, unless – (A) such

last day is a Saturday, a Sunday, or a legal holiday.” September 9, 2013, was

therefore the tenth day for purposes of section 3553(d) and the resultant CICA

stay. KBR is thus an interested party in this action.

3

Agency Incumbent Expiration2 Description

United States KBR 12/31/2013 Food services, air support

Army or with services, fire department

extension: services, badging services,

6/30/2014 and waste management

Defense Anham 2015 Food acquisition and

Logistics logistics through Kuwait

Agency

(“DLA”)

DLA Ram Dis 12/31/2013 Fuel acquisition and

Ticaret A.S. or with logistics; procurement and

extension: delivery of gasoline and

6/30/2014 diesel fuel from Turkey

Army URS 12/31/2013 Maintenance services for

Sustainment Corporation or with biometric and security

Command extension: equipment

3/31/2014

DOS Olgoonik, 11/15/2013 Fuel procurement and

Inc. with option delivery from the

to extend: Government of Iraq to

8/13/2014 Basrah

In addition to these services, the BLiSS contract will also cover certain

additional tasks, such as the demilitarization of sensitive and classified

equipment for disposal – currently performed by DLA.

The purpose of the BLiSS contract is to streamline provision of these

essential services by combining them under one contract as the mission in Iraq

transitions from one of military action controlled by the Department of

Defense to one of diplomatic activity facilitated by DOS. The BLiSS contract,

with option years, is valued at $1 billion. DOS awarded the BLiSS contract

2

The extensions to the KBR, Ram Dis Ticaret A.S., and URS

Corporation contracts would be made pursuant to 48 C.F.R. § 52.217-8.

4

to PAE Government Services (“PAE”) on July 2, 2013. Administrative

Record (“AR”) at 4.

Dyncorp and two other unsuccessful offerors protested the July 2 award

at GAO. A CICA stay was implemented barring PAE’s performance during

the pendency of the protest at GAO. DOS overrode the stay, explaining its

reasons in a Determination and Findings dated July 19, 2013. Dyncorp filed

suit here challenging the agency’s override decision. Shortly thereafter, the

agency voluntarily implemented a stop-work order and took corrective action

to consider the GAO protests. Dyncorp voluntarily dismissed the protest

before this court. See Dyncorp Int’l LLC v. United States, No. 13-539 (Fed.

Cl. Aug. 6, 2013) (motion to voluntarily dismiss).

After reevaluating the award, on August 29, 2013, the agency once

again awarded the contract to PAE. AR 4. On September 3, 2013, plaintiff

filed a protest at GAO challenging DOS’s second decision to award the

contract to PAE, again triggering an automatic CICA stay of performance. At

that time it was anticipated that plaintiff’s protest at the GAO would be

resolved by December 9, 2013.3

On September 9, 2013, DOS once more overrode the CICA stay based

on a new Determination and Findings (“D&F”). AR 1-15. The D&F sets out

the agency’s justification for its override decision pursuant to 31 U.S.C. §

3553(d)(3)(C), which provides that the agency may override the automatic stay

“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.” The agency

explained in the D&F that “it is still in the best interests of the Government to

proceed with performance . . . . [g]iven that continuity of services is critical to

[] DOS mission success and the health and safety of personnel and the

alternative of executing multiple bridge contracts are [sic] far more expensive

3

A lapse in appropriations caused GAO to shut down for roughly two

weeks in October. Consequently, there is now some uncertainty about whether

GAO will issue a decision by that date. If the sixteen days of shut down are

added to the December 9 date, the decision would be issued before the end of

the year.

5

and less efficient.” AR 13. Once the stay was lifted, PAE was permitted to

resume transition activities.

In its complaint, plaintiff protests DOS’s decision to override the stay.

We denied plaintiff’s motion for a preliminary injunction on September 27,

2013. In its current motion for summary judgment, it seeks a declaration that

the D&F was arbitrary and capricious as well as a permanent injunction to halt

PAE’s performance while GAO considers plaintiff’s protest.

DISCUSSION

We have jurisdiction under the Tucker Act, 28 U.S.C. § 1491(b) (2006),

to review an agency decision to override a CICA stay. Ramcor Servs. Grp.,

Inc. v. United States, 185 F.3d 1286, 1289-90 (Fed. Cir. 1999). When

evaluating cross-motions for judgment on the administrative record pursuant

to the Rules of the Court of Federal Claims (“RCFC”) rule 52.1(c), “the court

asks whether, given all the disputed and undisputed facts, a party has met its

burden of proof based on the evidence in the record.” Pmtech, Inc. v. United

States, 95 Fed. Cl. 330, 340 (2010) (citing Bannum, Inc. v. United States, 404

F.3d 1346, 1356-57 (Fed. Cir. 2005)).

The test4 for evaluating the merits of an agency’s override decision is

whether the agency’s determination was arbitrary, capricious, or otherwise not

in accordance with law. 5 U.S.C. § 706 (2012); 28 U.S.C. §1491(b)(4) (2006);

see also Pmtech, 95 Fed. Cl. at 341-44; Planetspace, Inc. v. United States, 86

Fed. Cl. 566, 567 (2009) (reviewing an agency override decision by applying

4

Plaintiff urges us to apply the factors adopted in Reilly’s Wholesale

Produce v. United States, 73 Fed. Cl. 705, 711 (2006), to assess the merits of

the agency’s decision. In particular, plaintiff urges us to apply an inquiry into

whether the D&F demonstrates that “significant adverse consequences will

necessarily occur if the stay is not overridden.” Id. We decline to apply that

test. We believe it overstates what is required by the arbitrary and capricious

standard particularly in the context of a “best interest” justification. We note

that the agency in Reilly’s relied on an “urgent and compelling” rationale. As

to the other factors, we believe that their application here would not lead to a

different result. See Dyncorp Int’l LLC v. United States, No. 13-689 (Fed. Cl.

Sept. 27, 2013) (order).

6

Administrative Procedures Act standards). An override decision would be

arbitrary or capricious if the agency:

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 Mfr. Ass’n of U.S., Inc. v. State Farm Mutual Auto. Ins. Co.,

463 U.S. 29, 43 (1983). Our task “is to determine whether the contracting

agency provided a coherent and reasonable explanation of its exercise of

discretion.” Impresa Construzioni Geom. Domenico Garufi v. United States,

238 F.3d 1324, 1333 (Fed. Cir. 2001) (quotation and citation omitted).

I. Content of the Administrative Record

Our review is typically confined to the content of the administrative

record furnished by the agency to document its decision. The Record filed

here consists of the September 9, 2013 D&F, the BLiSS Request for Proposals,

the July 2, 2013 award document, two of Dyncorp’s filings at GAO, and

KBR’s September 9, 2013 filing initiating its protest at GAO. Plaintiff has

sought to supplement the Administrative Record with a number of documents:

the affidavits of Michael Mayo, a Principal Program Manager at KBR, along

with attachments to those affidavits; an affidavit from Alan Boege, a Task

Order Contract Administrator at KBR; the July 30, 2013 Determination and

Findings authored by DOS; an ordering guide from the Army Sustainment

Command - First contract with URS Corporation; a press release issued by

Anham, the contractor currently providing food acquisition pursuant to a

contract with DLA; an amendment to the DLA contract with Ram Dis Ticaret

A.S.; Dyncorp’s August 30, 2013 written debriefing; and correspondence and

filings from the current protest before GAO. Plaintiff argues that these

documents are necessary for effective judicial review and are appropriate for

inclusion in the Record because most of the documents predate the current stay

override decision and were included in Dyncorp’s first stay override protest,

which placed the documents before the agency.

Defendant asserts that it has included everything in the Administrative

Record that is necessary for effective judicial review, citing Axiom Resource

7

Management, Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)

(holding that the trial court abused its discretion by adding plaintiff’s

documents to the administrative record without evaluating whether the record

before the agency was sufficient to permit meaningful judicial review). While

Axiom may set the standard for supplementing the administrative record, the

rules of our court establish the type of “core documents” that the government

was “required to identify and provide” or “make available for inspection.”

RCFC App’x C 21-22. These core documents include, when relevant and

appropriate, pre-award or post-award debriefing, “documents relating to any

stay, suspension, or termination of award or performance pending resolution

of the bid protest,” determination and findings prepared for the procurement,

and “the record of any previous administrative or judicial proceedings relating

to the procurement, including the record of any other protest of the

procurement.” RCFC App’x C 22(r), (s), (t), (u).

Some of the documents that plaintiff has put before us can be

categorized as “core documents.” The original D&F authored by DOS, the

written debriefing provided to Dyncorp on August 30, 2013, and the

correspondence and filings from the current protest before GAO all

presumptively qualify for inclusion in the Administrative Record under

appendix C of the court’s rules. We include them within the Administrative

Record.

The balance of the materials plaintiff seeks to introduce are neither core

documents nor, given the limited nature of the question before us, necessary

for effective judicial review. Much of the offered material relates either to

whether the existing contracts can be extended or to the merits of the GAO

protest. The latter issue is clearly not in front of us. While the former question

is relevant to some extent, as we explain below, accepting the new material is

not necessary because the agency concedes the thrust of plaintiff’s point, and

including it would be tantamount to opening the agency’s D&F to de novo

review.

II. Whether the Agency Justified its Decision Using the Best Interest or

Urgent and Compelling Circumstances Rationale

As referenced above, when an agency elects to override the automatic

CICA stay, it must explain whether its decision was predicated on its “best

interests” or for “urgent and compelling” reasons. See 31 U.S.C. §

3553(d)(3)(C) (2006). Although the D&F here purports to rely on a “best

8

interest” rationale, it is confusing in that it also incorporates language

consistent with the alternative “urgent and compelling” rationale, prompting

plaintiff to urge the court to hold the agency to the more stringent proof

required for the latter determination.

The September 9, 2013 notice letter issued by DOS to accompany the

D&F provides that the agency “determined it to be in the best interest of the

Government to proceed with contract performance.” AR 1. In support of its

“best interests” determination, however, the agency cites to the wrong statutory

authority, 31 U.S.C. § 3553(d)(3)(C)(i)(II), which assumes that “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 at paragraph seventeen of the D&F, although the agency

invokes the “best interest” rationale, it goes on to state that “[t]here are urgent

and compelling circumstances that significantly affect the interests of the

United States that will not permit waiting for the GAO’s decision on the

protest.” AR 6. Similarly, in the final paragraph of the D&F, the agency

concludes that “authorizing contract performance by PAE . . . is in the best

interests of the United States Government due to urgent and compelling

circumstances that significantly affect the interests of the United States and

will not permit waiting for GAO’s decision on the protest.” AR 15.

Defendant concedes that the D&F is confusing, but it insists that the

controlling language throughout is the “best interests” justification. We agree.

In the introductory paragraph, the D&F recites that ensuring that life support

services continue without disruption is in the government’s “best interests.”

AR 2. This rationale is repeated throughout the D&F as the agency explains

why transition to PAE ensures the government’s best interests by lessening the

risk that there will be a disruption in life support services. See AR 3 (“Without

life support services for these DOS sites, the DOS Mission and the security,

health, safety and welfare of personnel in Iraq will be severely jeopardized.”);

AR 5 (“[T]he transition schedule . . . will not accommodate any unforeseen

delays or external events that may further impact the transition schedule.”); AR

6 (“The security vetting process for workers is drawn out and complicated, and

filled with inherent delays.”); AR 11 (“To the extent[] [that DOS] was able to

negotiate a bridge contract with a vendor(s) to provide services directly to

[DOS], it is not in the Government’s best interest to do so [because] . . . a short

term arrangement would be at much greater cost [and] . . . [t]here is no single

contractor who is ideally suited to provide all services in house.”).

9

In sum, despite confusing language sprinkled throughout the D&F, we

conclude that the agency reasoned that the stay override was justified because

that course of action was in the government’s best interest.5

III. Whether Plaintiff has Proven that the Agency’s Best Interest Decision

was Arbitrary and Capricious

The fundamental reason offered by the agency for its override decision

is that it is in the government’s best interest to proceed with transition to PAE

in order to ensure that essential life support services, including food, fuel for

electricity, and emergency response services continue uninterrupted. The D&F

is 14 pages in length. It begins by summarizing the mission in Iraq and

describing the contracts that are currently in place to enable the government

to carry out that mission. The D&F catalogs the current contracts and

interagency agreements by type, by contractor and agency, and by duration.

The Head of Contracting Activity in DOS, Cathy J. Read, recites that she

considered sole-source extensions and bridge contracts and decided that

pursuing an alternative to PAE’s performance was not in the government’s

best interest because, in transitioning to PAE, even a best-case scenario left no

more than a three month cushion. If there are unexpected difficulties, and she

believes that to be plausible given the location, that cushion could disappear

and there might be a gap in performance.

The D&F attempts to assess the viability of contract extensions or sole-

source bridge contracts against the backdrop of variables involved in the

5

While the “best interests” rationale is, at it sounds, less demanding,

there are ramifications at GAO from the agency’s choice of that rationale. “If

the head of the procuring activity responsible for a contract makes a finding”

based on the best interest justification, then, in the event the protestor

establishes grounds for its protest, “the Comptroller General shall make

recommendations . . . without regard to any cost or disruption from

terminating, recompeting, or reawarding the contract.” 31 U.S.C. §

3554(b)(2).

10

transition to the new BLiSS contractor.6 The D&F assesses the feasibility of

extending each of the contracts in turn.

The life support contract being performed by KBR is set to expire on

December 31, 2013. The agency acknowledges that KBR’s contract could be

extended through June of 2014. PAE needs approximately 45 to 90 days to

obtain authorization to mobilize from the government of Iraq. Then, KBR

requires 90 days for demobilization which is coextensive with PAE’s time for

transition. Thus, there is a 130 to 180 day window projected for PAE to

acquire approval, for PAE to transition, and for KBR to demobilize. Even

with PAE beginning the process in September of 2013, KBR’s contract will

likely need to be extended into January, February, or March of 2014 in order

to complete the transition to PAE without a lapse in services. If the window

for transition of this contract was delayed until after GAO issues its decision,

then approval, transition, and demobilization is projected to be complete

anywhere from April to June 2014. Shifting the transition process for this

6

The DOS Executive Director of the Bureau of Near East Affairs, Lee

Lohman, asserts in a declaration attached to the D&F the following:

The security situation in the Middle East and in Iraq at the

moment is a grave and growing concern. . . . [T]he host

government continue[s] to be poorly-defined and ever-changing

. . . [and] regularly erects barriers or raises objections to the

operations of the [United States government] support

contractors within Iraq. Managing these procedures and

overcoming these barriers requires an extraordinary amount of

additional energy, on the part of both Embassy officials and

contractor companies, to complete actions considered routine in

countries with longer-established governments, such as

transportation requests, customs clearance and visas for

government and contractor personnel. . . . Accordingly, the

transition to the new BLiSS contractor may take longer than

planned and may face additional obstacles.

AR 18. In addition to the time required to obtain licenses, security clearances,

visas, or approval from the government of Iraq, there must also be time built

into the schedule for the new contractor to transition in and for the incumbent

to demobilize.

11

contract eliminates or significantly reduces the cushion that DOS must

preserve in order to “accommodate any unforeseen delays or external events

that may further impact the transition schedule.” AR 5.

The Army Sustainment Command – First contract with URS

Corporation also ends on December 31, 2013. The agency asserts in the D&F,

without explanation, that URS Corporation’s contract cannot be extended

beyond March of 2014. While the D&F did not provide an estimate for the

time needed to accomplish PAE’s transition and URS Corporation’s

demobilization, the D&F does anticipate that it will take PAE six months to

obtain the International Traffic in Arms license that is required to maintain and

support a system with radiological materials under the BLiSS contract.

Assuming that PAE applied for this license in September of 2013, it could be

February of 2014 before PAE secures the license. Even in a best-case

scenario, there is roughly a month of cushion during which unforeseen

complications could be addressed. If PAE was forced to delay application for

the license until after GAO resolves the protest, then PAE would likely not

have the license necessary to carry on URS Corporation’s work when the

contract expires on March 31, 2014.

DLA’s contract with Ram Dis Ticaret A.S. for fuel ends on December

31, 2013. This contract could be extended through June 30, 2014. The D&F

notes that “there is no requirement for demobilization that would impact the

schedule.” AR 7. DOS estimates, however, that it will take PAE 90 to 120

days to obtain licenses, diplomatic notices, and register as a commodity

supplier with the government of Iraq. While PAE could accomplish this

before the existing contract ends, that contract might have to be extended into

January of 2014. In the event this process began after GAO issued its

decision, then PAE would have all of the necessary requirements in place in

April or May of 2014. That would leave at most three months, and worst case

only two months, of buffer time to safeguard against a disruption in services

due to unforseen circumstances.

DOS considered a partial override, i.e., having PAE take over the work

which had the least room for unexpected problems, and found that this option

was untenable and would add to the government’s risk because it would

require cooperation between contractors who have conflicting interests. AR

15. The agency also explained that it considered multiple sole-source bridge

contracts, but each would involve negotiations and a 60-90 day transition in

12

period for obtaining visas and clearances, making these interim measures

unreliable. AR 10.

The agency has taken the position that, even if PAE’s transition for each

of these contracts began in September of 2013, there is still a very real

possibility that DOS will have to unilaterally extend some7 of the incumbent

contracts pursuant to 48 C.F.R. § 52.217-8 to ensure continuity of services.

After listing all of the steps involved in maintaining the status quo, the agency

concluded, “even if the extensions were granted, it is not a feasible approach

and cannot ensure continuity of services.” AR 5. The agency further

explained that, if approval for contract extensions,

was granted in a reasonable amount of time, even a full six

month extension would not ensure adequate time for transition

and would not accommodate any unforeseen delays or

disruptions. Given the current volatile situation in the Middle

East there is significant concern that there will be evacuations

and/or delays for contractor staff transitioning.

AR 9.

The relevant question is whether plaintiff has shown that this analysis

as to the government’s best interest was arbitrary or capricious. Plaintiff

contends that the agency failed to give sufficient attention to whether there

were reasonable alternatives to the stay override, specifically through contract

extensions, or sole-source bridge contracts. It suggests that contract extensions

could be made pursuant to 48 C.F.R. § 52.217-8, which provides, “The

Government may require continued performance of any service within the

limits and at the rates specified in the contract. . . . The option provision may

be exercised more than once, but the total extension of performance hereunder

shall not exceed 6 months.” It also argues that there is no suggestion in the

D&F that the agency began the process of invoking 48 C.F.R. § 52.217-8 or

that it attempted to negotiate with existing contractors to enter into sole-source

contracts extending performance.

7

The D&F also explores the DLA contract with Anham for food and

the DOS contract with Olgoonik, Inc. for fuel and concludes that these

contracts could be extended by their own terms long enough so that continued

provision of these services is not a concern.

13

While it is correct that there is no reason to believe the agency actually

began the process of triggering contract extensions, or attempted to negotiate

sole-source bridge contracts, what is clear is that the agency was aware of

those possibilities, seriously considered them, and rejected them with coherent

and reasonable explanations. The extensions that the government could invoke

by right would only take the existing contracts out until March 31 or June 30,

2014. Given the need to allow for demobilization and transition, the cushion

periods effectively ranged from 0 days to 90 days. Other contract vehicles

beyond that time would have involved negotiation, competition, and their

attendant uncertainties.

Given the fact that all the transition activities would occur in Iraq,

which the agency describes as a dangerous place and one in which it is in the

government’s best interest to limit personnel and the size of its “footprint” in

order to minimize security concerns, AR 12, and that multiple contract

vehicles would have to be extended, with the attendant need for visas, housing

and licensing, it was not arbitrary or capricious to limit the risks of transition

by overriding the stay. These are not illusory concerns. In light of the

possibility that extending existing contracts or implementing sole-source

bridge contracts would not unfold with the efficiency of a Swiss watch, the

agency’s decision that the best interest of the government was served by

initiating immediate transition to PAE rather than pursuing what it believed

was a risky alternative approach was not unreasonable. While the government

may have been cautious, it was not arbitrary or capricious to insist on a stay

override to ensure a buffer period during the transition schedule.

IV. Whether We Apply the Test for Injunctive or Declaratory Relief

Plaintiff seeks both a declaration invalidating the agency’s override

decision and a permanent injunction halting PAE’s performance during the

pendency of the GAO protest. As defendant points out, the test for obtaining

injunctive relief is more extensive than that for obtaining declaratory relief.

Plaintiff concedes the point, but takes the position that it would be sufficient

for its purposes if the court merely declared that the D&F was arbitrary and

capricious. By negating the D&F, what would automatically re-emerge,

according to plaintiff, is the statutory CICA stay.

Defendant disagrees, contending that, if what plaintiff really seeks is an

end to PAE’s current performance, this amounts to affirmative relief and is

tantamount to an injunction. It cites PGBA, LLC v. United States, 389 F.3d

14

1219, 1228 (2004) (affirming the trial court’s decision to deny plaintiff’s

request for declaratory relief when the nature of the relief sought was

injunctive). If the government is correct, plaintiff would also have to meet the

four-part test for obtaining an injunction: (1) success on the merits, (2) proof

that the plaintiff will suffer irreparable harm if the court withholds injunctive

relief, (3) proof that the balance of hardships favors the grant of injunctive

relief, and (4) that the public interest is served by a grant of injunctive relief.

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

Defendant contends that plaintiff clearly cannot demonstrate that it would

suffer permanent injury during the pendency of the stay or that its injury would

exceed the threat to the government from delay.

This is a topic on which judges of this court have disagreed. Compare

URS Fed. Servs., Ins. v. United States, 102 Fed. Cl. 674, 675-76 (2012)

(holding that declaratory relief was sufficient), and Chapman Law Firm Co.

v. United States, 65 Fed. Cl. 422, 424 (2005) (concluding that declaratory

relief reinstates the statutory stay), with Superior Helicopter LLC v. United

States, 78 Fed. Cl. 181, 194-195 (2007) (applying the injunctive factors).8

We need not resolve the question, however. Either remedy requires

plaintiff to prevail on the preliminary issue, namely, that the D&F was

8

See also the discussion in James Y. Boland, CICA Override Practice

– The Case Against Injunctive Relief, 50 Gov’t Contractor, No. 1, ¶ 1 (Jan. 9,

2008) (citations omitted):

In PGBA, a declaration would have been tantamount to an

injunction because the plaintiff wanted the [Court of Federal

Claims] to terminate the award – in other words, relief that was

an inherently coercive act by the court with respect to the

agency. In CICA override cases, however, declaratory relief is

not tantamount to an injunction because there is no coercive

action on the part of the court. A declaration invalidated the

override decision, and the statute simply reimposes the stay that

is otherwise required by law. By its nature, a declaratory

judgment prevents a future override decision based on the

rationale stated in the D&F that has been declared invalid.

15

arbitrary and capricious. We have concluded that the agency’s decision was

not.

CONCLUSION

For reasons explained above, we grant in part and deny in part

plaintiff’s motion to supplement the administrative record. We deny plaintiff

and plaintiff-intervenor’s joint motion for reconsideration of our denial of

plaintiff’s motion for a preliminary injunction. We deny plaintiff’s and

plaintiff-intervenor’s motions for judgment on the administrative record. We

grant defendant’s and defendant-intervenor’s motions for judgment on the

administrative record. The clerk is directed to enter judgment accordingly and

dismiss the complaint with prejudice. No costs.

s/ Eric G. Bruggink

ERIC G. BRUGGINK

Judge

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