Whr Group, Inc. v. United States

United States Court of Federal Claims

No. 13-515 C

(13-541 C consolidated)

(Filed Under Seal: March 21, 2014)

∗

(Reissued: April 8, 2014)

_________________________________________

WHR GROUP, INC.,

Plaintiff,

Bid protest; Judgment on

and the administrative record;

Standards for corrective

FRANCONIA REAL ESTATE SERVICES action; Injunctive relief;

d/b/a Allegiance Relocation Services, Permanent injunction

Plaintiff-Intervenor,

LEXICON GOVERNMENT SERVICES, LLC,

Plaintiff-Intervenor,

v.

UNITED STATES OF AMERICA,

Defendant,

and

BROOKFIELD RELOCATION, INC.,

Defendant-Intervenor,

CAPITAL RELOCATION SERVICES LLC,

Defendant-Intervenor,

TRC GLOBAL SOLUTIONS, INC.,

Defendant-Intervenor.

________________________________________

∗

This opinion originally was issued under seal on March 21, 2014. The court afforded the

parties an opportunity to propose redactions in the opinion prior to its reissue. Herewith is the

reissued opinion with redactions incorporated.

David T. Ralston, Jr., Foley & Lardner LLP, Washington, DC, for plaintiff.

Thomas L. McGovern, III, Hogan Lovells US LLP, Washington, DC, for plaintiff-

intervenor Franconia Real Estate Services d/b/a/ Allegiance Relocation Services.

William F. Savarino, Cohen Mohr LLP, Washington, DC, for plaintiff-intervenor

Lexicon Government Services, LLC.

Devin A. Wolak, United States Department of Justice, Washington, DC, for defendant.

Seamus Curley, DLA Piper US LLP, Washington, DC, for defendant-intervenor

Brookfield Relocation Inc.

Daniel B. Abrahams, Brown Rudnick, Washington, DC, for defendant-intervenors

Capital Relocation Services LLC and TRC Global Solutions, Inc.

OPINION and ORDER

Block, Judge.

Plaintiffs WHR Group, Inc. (“WHR”) and Lexicon Government Services, LLC

(“Lexicon”) provide services designed to assist government agencies with personnel relocation.

Plaintiffs, as well as plaintiff-intervenor Franconia Real Estate Services (“Allegiance”), were

awarded agreements to provide these services to the Federal Bureau of Investigation (“FBI”),

pursuant to a solicitation conducted in January 2013 (the “January solicitation”). Plaintiffs bring

this consolidated post-award bid protest, 1 contesting the FBI’s decision to cancel those awarded

agreements and replace them through a revised solicitation.

This case is procedurally convoluted. Prior to its consolidation, five parties intervened in

each of plaintiffs’ protests, with two parties siding with the named plaintiff and three on the side

of the defendant. Furthermore, during the pendency of this case, defendant-intervenors

Brookfield Relocation Inc. (“Brookfield”), Capital Relocation Services LLC (“CapRelo”), and

TRC Global Solutions, Inc. (“TRC”), each filed related protests. 2 All in all, the FBI’s action in

this case gave rise to a total of five bid protests. The resulting morass brings to mind William

Faulkner’s observation as to why the lawyer loves the complex: “[To] a lawyer, if it ain't

complicated it don’t matter whether it works or not because if it ain't complicated up enough it

ain't right and so even if it works, you don’t believe it.” 3

1

The court consolidated WHR’s and Lexicon’s bid protests in an order issued on August 8,

2013, pursuant to Court of Federal Claims Rule 42(a), because the cases involve common

questions of law. See ECF Dkt. No. 42 (Fed. Cl. Aug. 8, 2013).

2

The court dismissed those protests, 13-592 (Brookfield), 13-596 (CapRelo), and 13-597 (TRC),

sua sponte without prejudice for lack of subject matter jurisdiction on October 4, 2013.

3

William Faulkner, THE TOWN 296 (1957).

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These now hopefully less complicated consolidated cases come before the court on

plaintiffs’ motions for judgment on the administrative record pursuant to Court of Federal

Claims Rule (“RCFC”) 52.1(c) and motions for injunctive relief pursuant to RCFC 65. Plaintiffs

seek to permanently enjoin the FBI from cancelling the agreements awarded pursuant to the

January solicitation, soliciting another round of proposals for relocation services pursuant to a

revised solicitation, and continuing to procure relocation services from the incumbent

Brookfield, through extended task orders.

For the reasons stated below, the court will grant plaintiffs’ motions for judgment on the

administrative record and permanent injunctive relief. Accordingly, the court will permanently

enjoin the FBI from conducting a revised solicitation in order to replace plaintiffs’ awarded

agreements and further extending or utilizing Brookfield’s task order, except to the extent a

transition period is necessary.

I. BACKGROUND

To provide some clarity to the case, thus avoiding being drawn into a black hole of

confusion, the court will commence with a chronological narrative of the case's history. The

court will begin with the terms of the FBI’s January solicitation for relocation services and the

initial set of awards issued pursuant to that solicitation. Next, the court will discuss the bid

protests which lead to the instant case: Brookfield’s protest of the initial awards, the FBI’s

settlement of that protest through award to Brookfield, and CapRelo’s and TRC’s protests of the

award to Brookfield. The court will then examine the FBI’s proposed corrective action and the

protest of that action, the basis of the instant case.

A. The January Solicitation

The FBI is an “intelligence-driven and [] threat-focused national security organization” 4

tasked with defending the United States from terrorist and foreign threats as well as upholding

and enforcing domestic criminal laws. In pursuit of this expansive mission, the FBI maintains a

substantial infrastructure, including 56 “divisions,” or field offices, and 380 smaller resident

agencies, stationed across the United States. 5 Additionally, the FBI operates more than 60

international offices in U.S. embassies and employs over 13,000 special agents. The FBI

periodically relocates these agents along this large network of offices. For example, new agents

are sometimes assigned to smaller field offices and relocated once the agents have completed

training under a veteran special agent. 6

In order to assist these agents, the FBI contracts with providers of “relocation services.”

These are services designed to minimize the inconvenience of moving and include home sale

services, home marketing services, destination area services, reports, mortgage counseling,

property management services, special handling transactions, and move management services.

Pl.’s Mot. for Prelim. Inj. at 3.

The FBI currently procures these relocation services through defendant-intervenor

Brookfield. The FBI has retained Brookfield through extensions of Brookfield’s task order,

4

http://www.fbi.gov/about-us/quick-facts.

5

http://www.fbi.gov/contact-us/field.

6

https://www.fbijobs.gov/114.asp.

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which originally expired on September 30, 2012. AR at 2074. These extensions are to ensure

there is no gap between Brookfield and the next competitively-awarded provider or providers.

On January 22, 2013, the FBI issued a solicitation seeking to award, through competitive

bidding, its task orders for relocation services pursuant to what are termed Blanket Purchase

Agreements (“BPAs”). 7 The January solicitation contemplated awarding up to four BPAs. AR

at 9. Offerors were to be evaluated according to: their “ability to meet all the stated FBI

technical requirements as delineated in the Technical Requirements Matrix Form,” price, and

past performance. AR at 46. Past performance was to be evaluated on a “pass/fail” basis. Id.

Section M.1 of the January solicitation also provided that “[a]ward of the [BPAs] [would] be

made to the responsible quoter/quoters whose quote is technically acceptable, in full compliance

[with] all requirements set forth in the quote and [for] the lowest cost.” Id. Put simply, the FBI

planned to award anywhere from one to four BPAs to the lowest-priced technically acceptable

offeror or offerors.

Three aspects of the solicitation are of particular importance to this case: the so-called

100 percent financial capability requirement, the agency’s estimation of its demand for services,

and the rotation-system for task order assignment. As explained below, these provisions are the

crux of the FBI’s decision to cancel the January solicitation’s awards.

The 100 percent financial capability requirement, listed in the Technical Requirement

Matrix Form, Item 33, required offerors to check “yes” or “no” to the following: “[The

contractor] [s]hall be capable of and provide supporting documentation to verify ability to

financially handle 100% of the anticipated work as reflected in the FBI’s past three years of

historical information.” AR at 149. In other words, the 100 percent financial capability

requirement mandated that each offeror certify, with supporting documentation, that it had the

capacity to handle the entirety of the FBI’s relocation service needs.

Notably, the solicitation did not suggest any specific type of supporting documentation to

offerors. AR at 1278. Nor did the solicitation purport to apply any specified level of review to

the supporting documentation offerors chose to provide. Id.

The solicitation also provided a projected demand figure in order to assist offerors with

pricing their bids. AR at 47-48. In the solicitation’s Statement of Work, the FBI estimated that

it would require relocation services for approximately 2,000 moves per year. Id. However, the

Statement of Work made clear that this estimate was not binding, expressly providing that “the

successful Contractor will be required to perform regardless of the actual experience of the FBI

in the future.” Id. at 48.

The January solicitation also set forth a plan for distributing task orders among BPA

holders if multiple BPAs were awarded. Specifically, in the event of multiple BPA awards, each

BPA holder would be given a “fair opportunity” to receive task orders on a rotating basis. AR at

11. Noting that “[t]here may be situations which interrupt the flow in the order rotation,” the

FBI reserved the right to waive the rotation system on a case-by-case basis. Id.

7

A BPA is “a collection of provisions that may mature into a contract between the government

and a supplier if and when a purchase order. . . is entered into by each. Crewzers Fire Crew

Transp., Inc. v. United States, 98 Fed. Cl. 71, 77 (2011). BPAs are properly the subject of bid

protest suits. See Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320 (Fed. Cir. 2011).

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Also, it is worth mentioning that the January solicitation contained a “pricing matrix.”

AR at 134-39. The pricing matrix required offerors to name a price for several items, consisting

of ranges of home values from $0 to $750,000. Id. Thus, offerors were to provide several

prices, one for each range, rather than a single price for all relocation services.

B. The Initial Set of Awards

The FBI received proposals in response to the January solicitation and determined that

there were seven offerors that met all of the relevant technical requirements. These seven

technically acceptable offerors included all of plaintiffs and intervenors in these cases as well as

[redacted]. The total prices offered for each bidder were as follows:

Franconia Real Estate Services $12,165,236.13

Lexicon Government Services, LLC $12,445,027.86

WHR Group, Inc. $12,448,228.23

Capital Relocation Services [redacted]

[redacted] [redacted]

Brookfield Relocation, Inc. [redacted]

TRC Global Solutions, Inc. [redacted]

AR at 784. On March 15, the FBI awarded BPAs to the three lowest-priced technically

acceptable offerors: WHR, Lexicon, and Franconia Real Estate Services, doing business as

Allegiance. Id. at 787.

In an “Award Rationale” memorandum dated March 14, 2013, the FBI set forth two

reasons for awarding only these three BPAs. P.A. 49-51. First, the FBI noted that the price

difference between WHR and the fourth lowest-priced technically acceptable offeror, CapRelo,

was approximately [redacted]. Id. This was significantly larger than the price gap between

Allegiance, Lexicon, and WHR, all of whose prices were within less than $300,000 of each

other. The FBI therefore determined that the gap between WHR and CapRelo was a “natural

price break,” and thus a suitable cut-off point for awarding BPAs. Id. Second, the FBI

determined that awarding a fourth BPA would mean a higher program cost and additional

administrative burdens. Id. In the FBI’s view, these drawbacks would outweigh any advantage

gained by awarding fourth BPA. Id.

C. The Brookfield Protest and the Settlement Agreement

A week after the award, on March 22, Brookfield—the sixth lowest-priced technically

acceptable offeror—filed a protest with the Government Accountability Office (“GAO”). AR at

982. In its protest, Brookfield contended that the FBI had not appropriately reviewed the

mandatory documentation that the awardees had provided in support of their “self-certifications”

of compliance with the 100 percent financial capability requirement. Id. at 994.

In Brookfield’s view, the FBI could not rely on offerors’ self-certifications without

substantive review of the submitted supporting documentation. Id. at 993-98. Brookfield argued

that, because the agency had requested supporting documentation, the FBI was required to

analyze the documentation and independently determine whether offerors were capable of

providing 100 percent of the agency’s relocation service needs. Id. Brookfield also contended

that, insofar as the FBI failed to do this, the agency had improperly waived the 100 percent

financial capability requirement. AR at 1268-69.

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The FBI disagreed. In the official statement to the GAO, the contracting officer pointed

out that the January solicitation did not state that the FBI would evaluate the supporting

documentation. Id. at 1278. Rather, according to the contracting officer, the FBI requested

supporting documentation only “to secure a sense of accountability from the vendors.” Id. For

that reason, the FBI reviewed the supporting documentation only for “contradictory statements.”

Id.

Although the GAO did not reach a formal decision, the GAO did issue an informal

“outcome prediction” during a teleconference with the parties on March 23. 8 The only record of

this outcome predication teleconference is a GAO email scheduling the conference call. AR at

2092. Thus, the administrative record contains no direct evidence of the GAO attorney’s

statements. However, the parties agree that (1) the GAO did not issue a final decision, (2) the

essence of the GAO’s prediction was that Brookfield’s protest would be sustained, and (3) the

GAO stated that it would recommend that the FBI examine the supporting documentation to

evaluate offerors’ financial capability. D’s Res. to Mot. for Prelim. Inj. at 10-11; P’s Rep. to

Mot. for Prelim. Inj. at 9-10.

Following this “outcome prediction,” the FBI entered into a settlement agreement with

Brookfield (the “settlement agreement”) on June 7. This agreement included six provisions. AR

at 1813. First, the FBI pledged to award a fourth BPA to Brookfield. Id. Second, Brookfield

agreed to waive its rights to protest and bid preparation costs that might have been available in

GAO. Id. Third and fourth, the FBI and Brookfield agreed to move to dismiss any protest of the

FBI’s decision to award Brookfield’s BPA. Id. Fifth, the FBI represented that, if dismissal was

denied, the agency’s “present intent” was to eliminate the 100 percent financial capability

requirement and allow offerors to submit revised bids. Id. Sixth, Brookfield reserved its right to

contest the initial round of awards to WHR, Lexicon, and Allegiance.

In light of the settlement agreement, the GAO dismissed Brookfield’s protest as

“academic.” Id. at 1860. But the settlement agreement and the GAO dismissal would not be the

final word on the matter. The agreement and the decision to award a fourth BPA to Brookfield

set in motion a slew of events leading to the instant action, beginning with additional protests.

D. The CapRelo and TRC Protests

On June 17, the fourth lowest-priced technically acceptable offeror, CapRelo, filed a

GAO protest challenging the FBI’s award to Brookfield, issued in accordance with Brookfield’s

June 7 settlement agreement. AR at 1983. CapRelo argued that if a fourth BPA were awarded,

it should be awarded to the next-most competitively-priced bidder, instead of the sixth lowest-

priced technically acceptable offeror - Brookfield. Id. at 1983-84.

On June 24, TRC filed the second protest challenging Brookfield’s award. AR at 2026-

2028. TRC, the seventh lowest-priced technically acceptable offeror, similarly alleged that the

FBI’s award to Brookfield was improper because Brookfield “was not next in line.” Id. at 2027.

Despite the fact that the CapRelo and TRC protests challenged only the award to Brookfield, the

FBI issued a stop work order to all four BPA-holders, including Allegiance, Lexicon, and WHR.

AR at 1994.

8

An outcome prediction is a “flexible” alternative dispute resolution procedure wherein “GAO

will advise the parties of the likely outcome of the protest in order to allow the party likely to be

unsuccessful to take appropriate action to resolve the protest without a written decision.”

http://www.gao.gov/decisions/bidpro/bid/timetable.html.

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In keeping with the terms of the settlement agreement, the FBI and Brookfield moved to

dismiss the CapRelo protest on June 26. AR at 2031-33; 2034-43. That same day, the FBI

independently moved to dismiss the TRC protest. AR at 2051-53. The GAO dismissed TRC’s

protest on the ground that TRC was not an interested party because, as the seventh lowest-priced

technically acceptable offeror, it was not in line to receive the fourth BPA. AR at 2065-66.

However, the GAO declined to dismiss the CapRelo protest, finding CapRelo was a sufficiently

interested party. AR at 2049.

E. FBI’s “Corrective Action”

On July 12, once GAO declined to dismiss CapRelo’s protest, the FBI announced that it

would take “corrective action,” as the agency represented it would in the settlement agreement.

On July 16, the FBI stated, in an email to the BPA awardees, that it intended to cancel all four

BPAs in the first of two internal memoranda dubbed “note[s] to file.” AR at 2067, 2068. These

two documents, issued on July 16 and July 24 respectively, memorialize the basis for the FBI’s

decision to cancel the four awarded BPAs and restart the solicitation’s bidding process.

1. The July 16 Note to File

According to the first of these memoranda, the July 16 note to file, the FBI made the

decision to take corrective action “to resolve the CapRelo protest.” AR at 2068-9. This

proposed corrective action “entail[ed] cancelling the Brookfield BPA.” Id. at 2068. In the next

sentence, the note explains that the plaintiffs’ awards were also to be cancelled “[p]ursuant to the

BPA terms and conditions.” Id.

The July 16 note also states that, upon cancellation of the BPAs, the FBI planned to

conduct the procurement anew and “utiliz[e] this opportunity” to revise certain provisions in the

solicitation. Id. Specifically, the note states that the FBI planned to eliminate the 100 percent

financial capability requirement, reduce the estimated number of relocations in light of

“sequestration cutbacks,” and revise the ordering process by eliminating the rotation system. Id.

Furthermore, as explained in the July 16 note to file, the FBI rejected at least two

alternatives to cancelling all four BPAs and conducting a new procurement. Id. First, the FBI

declined to follow the GAO’s informal recommendation and examine the supporting

documentation offerors submitted with their bids to evaluate their financial capability. Id. The

FBI rejected this option because the supporting documentation was “insufficient for evaluation”

and the FBI had no standard in place by which to conduct such an evaluation. Id.

Second, and more importantly, the FBI decided against cancelling only Brookfield’s

BPA, opting to also cancel the three BPAs awarded to WHR, Lexicon, and Allegiance. Id. The

FBI rejected this option because the agency believed it would almost certainly cause Brookfield

to renew its protest, “further prolong[ing] the protest timeframe.” Id. However, the FBI

acknowledged that cancelling all four BPAs might “attract protests from the three current BPA

holders.” Id at 2069. The agency did not further clarify this point, concluding that cancelling all

four BPAs was “in the best interests of the government.” Id.

2. The July 24 Note to File

The week following the July 16 note to file brought several significant developments. On

July 17, the GAO dismissed the CapRelo protest as academic, once notified of the FBI’s July 16

note to file. AR at 2072-73. On the very next day, July 18, WHR filed notice in this court that it

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intended to file the instant bid protest. Almost a week after notice of this protest was filed, on

July 24, the FBI created its second note to file. AR at 2074-79.

In the July 24 note to file, the FBI set forth a different justification for its corrective

action. Whereas the July 16 note to file states that the FBI’s decision to cancel the four awarded

BPAs was justified as a means of addressing the CapRelo protest, the July 24 note to file

reframes the agency’s rationales. Id. The July 24 note to file cites flaws in the January

solicitation as the basis for the FBI’s decision to cancel the three BPAs awarded to Allegiance,

Lexicon, and WHR. Id. at 2074, 2076. Indeed, the bulk of the July 24 note to file explains the

needed revisions to address the solicitation’s issues in detail. Id. at 2074-76.

First, the FBI discussed the need to revise the solicitation’s cost and relocation estimates

in light of “new information.” Id. at 2074. Specifically, the FBI alleged that it had learned that

there would be a probable 40 percent reduction in relocation needs in the coming fiscal year. Id.

According to the FBI, changing the solicitation to reflect this reduction was necessary in order to

enable offerors to revise their pricing “in a fair manner.” Id.

Second, the FBI set forth a justification for its decision to drop the solicitation’s

requirement that task orders be distributed on a rotating basis. Id. at 2075. The FBI explained

that it had recently discovered that rotating task orders among BPA-holders would violate

Federal Acquisition Regulation (“FAR”) 8.405-3(c)(2)(iii). Id.; 48 C.F.R. 8.405-3(c)(2)(iii).

FAR 8.405-3(c)(2)(iii) governs task orders above an amount termed the “simplified acquisition

threshold,” set by statute at $150,000. 48 C.F.R. 2.101. The provision states that when an order

exceeds the simplified acquisition threshold, all BPA-holders must be afforded the opportunity to

submit a quote and the procuring agency must “fairly consider” all of these quotes and make an

award. 48 C.F.R. 8.405-3(c)(2)(iii). In other words, orders above the simplified acquisition

threshold cannot simply be rotated among BPA-holders—they must be distributed through

competition. In the FBI’s view, this could only be accomplished by revising the solicitation to

reflect FAR 8.405-3(c)(2)(iii). AR at 2075.

Third, the FBI addressed the 100 percent financial capability requirement. Id. As

mentioned above, the January solicitation required that offerors certify that they were financially

capable of handling 100 percent of the FBI’s relocation service needs. The agency explained

that this requirement was a relic of the housing market downturn and that it was no longer

necessary to ensure adequate competition. Id. The FBI further explained that eliminating the

requirement would allow offerors to revise their pricing. Id.

Fourth, the FBI stated that it would change the pricing methodology. Id. at 2076. As

explained above, the January solicitation required offerors to submit fees for multiple home

value brackets ranging from $0 to $750,000. In the revised solicitation, offerors would submit a

single fee quote based on average home cost during the most recent fiscal year. Id. This would

create the “tangential benefit of mitigating [the] exposed pricing” of Allegiance, Lexicon, and

WHR “because the prior evaluated prices should not correlate to the new pricing scheme.” Id.

Finally, the FBI also explained its basis for continuing to procure relocation services from

Brookfield under the extended task order, pending completion of a new procurement pursuant to

a revised solicitation. Id. In the agency’s view, the transition costs necessary to install a new

vendor or vendors exceeded any potential savings. Id.

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F. The Instant Protests

On July 26, WHR filed its complaint in this court. On August 5, Lexicon filed its

complaint. Over the ensuing days, this court consolidated these protests and granted the

respective motions to intervene of Brookfield, Allegiance, CapRelo, and TRC. 9

WHR and Lexicon each filed for a preliminary injunction on August 5. On August 6, the

FBI issued a revised solicitation. The revised solicitation requested offerors submit their bids by

August 13. WHR moved for a temporary restraining order (“TRO”) on August 7, enjoining the

FBI from cancelling the BPAs, proceeding with the new procurement, and making a new award

or awards. On August 12, the court granted the motion in part and denied it in part. Because the

FBI represented that it would not formally cancel the BPAs until the court had the necessary time

to rule on the motions for a preliminary injunction, it was unnecessary to restrain the FBI from

cancelling the BPAs. However, the court did restrain the FBI from proceeding with the new

procurement. 10

In their motions for a preliminary injunction, WHR and Lexicon sought to enjoin the FBI

from taking three actions: (1) cancelling the awarded BPAs, (2) conducting a new procurement

pursuant to the revised Solicitation, and (3) extending the Brookfield task order during the

pendency of this litigation. During oral argument on August 29, the parties agreed that,

following submission of further materials on the issue of harm suffered by the respective parties,

the court could proceed to determine the propriety of permanent injunctive relief. O.A. Trs. at

104-109. Defendant submitted a declaration of the contracting officer on September 17. See

ECF Dkt. 103, attachment (“Declaration of Dina Olibah”). Plaintiffs and plaintiff-intervenor

filed a joint response on September 20. That same day, Brookfield filed a declaration of its

director of pricing and sales finance. See ECF Dkt. 105, attachment (“Declaration of Brian

McEleney”).

Having reviewed all the parties’ submissions, the court is now prepared to render a

decision. For the reasons stated herein, plaintiffs’ motions for judgment on the administrative

record and permanent injunctive relief are granted.

II. DISCUSSION

This court is authorized to hear bid protests such as the ones before the court by The

Tucker Act, as amended by the Administrative Disputes Resolution Act (“ADRA”), Pub. L. No.

104–320, § 12, 110 Stat. 3870, 3874–76 (1996). Specifically, the Tucker Act provides the U.S.

Court of Federal Claims with “jurisdiction to render judgment on an action by an interested party

objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract . . . or

any alleged violation of statute or regulation in connection with a procurement or a proposed

procurement.” 28 U.S.C. § 1491(b)(1).

Before the court are two motions—plaintiffs’ motion for a judgment on the

administrative record pursuant to Court of Federal Claims Rule (“RCFC”) 52.1(c) and motion for

9

Defendant-intervenors Brookfield, CapRelo, and TRC filed protests of their own challenging

the award of BPAs to Allegiance, Lexicon, and WHR. The court dismissed those protests sua

sponte without prejudice for lack of subject matter jurisdiction.

10

Defendant has since agreed not to resume the procurement pending the outcome of this case,

rendering it unnecessary to consider whether to extend the TRO.

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injunctive relief pursuant to RCFC 65. As this court has previously noted, these are discrete

considerations. PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520 (2010). If plaintiffs succeed

on their motion for judgment on the administrative record and, hence, on the merits, “it does not

automatically follow that plaintiff[s’] requested injunction will issue.” Id. at 531; See PGBA,

LLC v. United States, 389 F.3d 1219, 1225–26 (2004) (stating that “section 1491(b)(4) only

incorporates the standard of review of section 706(2)(A) and therefore does not deprive a court

of its equitable discretion in deciding whether injunctive relief is appropriate.”). Accordingly,

the court will consider each of these motions in turn and separately.

A. Motion for Judgment on the Administrative Record

1. Standards

A judgment on the administrative record is “properly understood as . . . an expedited trial

on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (2005). In contrast to a

RCFC 56 motion for summary judgment, “a genuine dispute of material fact does not preclude a

judgment on the administrative record.” Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735,

751 (2012) (citing Bannum, 404 F.3d at 1355-56).

The ADRA requires courts to review agency decisions in bid protest cases “pursuant to

the standards set forth in section 706 of title 5.” 28 U.S.C. § 1491(b)(4). Nonetheless, the

Supreme Court has long held that the de novo review standard set forth in 5 U.S.C. § 706(2)(F)

applies to adjudicatory actions, not informal agency decisions. See MORI Associates, Inc. v.

United States, 102 Fed. Cl. 503, 518 (2011) (citing Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 415 (1971)). Rather, the court is limited to considering whether the agency’s

action in this case was “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law.” 5 U.S.C. § 706(2)(A); Bannum, Inc., 404 F.3d at 1351.

To make this determination, the court must decide if “(1) the procurement official's

decision lacked a rational basis,” as well as whether “(2) the procurement procedure involved a

violation of regulation or procedure.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358

(Fed.Cir. 2009) (internal citations omitted). To succeed on the first ground, the protestor must

show that the agency failed to provide a “coherent and reasonable explanation of its exercise of

discretion”; to succeed on the second ground, the protestor must show that there was a “clear and

prejudicial violation of applicable statutes or regulations.” Wildflower Int'l, Ltd. v. United States,

105 Fed. Cl. 362, 385 (2012) (quoting Banknote of Am., Inc. v. United States, 365 F.3d 1345,

1350 (Fed. Cir. 2004)).

Concordantly, in considering the propriety of an agency’s corrective action, the court

must consider whether the agency’s decision was “reasonable under the circumstances.”

Sheridan Corp. v. United States, 95 Fed. Cl. 141, 151 (2010); DGS Contract Serv., Inc. v. United

States, 43 Fed. Cl. 227, 238 (1999). An agency action cannot meet this bar unless it examined

the relevant data and articulated a coherent and reasonable explanation for their decision. Motor

Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);

Impresa Construzioni Geom. Domenico Garufi, 238 F.3d 1324, 1333 (Fed. Cir. 2009). Indeed,

“[i]t is an axiom of administrative law that an agency's explanation of the basis for its decision

must include a ‘rational connection between the facts found and the choice made.’” Bowen v.

Am. Hosp. Ass'n, 476 U.S. 610, 626 (1986) (internal citations omitted). Nonetheless, “it is well

established that procurement officials are entitled to a strong presumption of regularity and good

faith,” which can only be overcome by “clear and convincing evidence” to the contrary. Linc

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Gov’t Serv., LLC v. United States, 96 Fed. Cl. 672, 720 (2010) (citing Am-Pro Protective

Agency, Inc. v. United States, 281 F.3d 1234, 1239-41 (Fed. Cir. 2002)); see also Withrow v.

Larkin, 421 U.S. 35, 55 (1975).

These standards have been applied in several decisions by this court that delineate the

limits of agency discretion within the context of a corrective action.

In Sheridan Corp v. United States (“Sheridan II”), 95 Fed. Cl. 141 (2010), the plaintiff

successfully challenged the decision of the United States Property and Fiscal Office of Maine,

National Guard Bureau, to take “corrective action,” suspending an awarded contract and

soliciting revised proposals in a procurement for construction of an aircraft maintenance hangar.

The agency had taken this corrective action in response to a protest filed in the GAO by an

unsuccessful offeror. That protest alleged that the agency had made an evaluation error,

incorrectly excluding the protestor from the competitive range. This court sustained plaintiff’s

protest on the ground that the authority to take “corrective action” does not include authority “to

resolicit proposals because of a perceived evaluation error.” Id. at 153. The court explained that,

in light of the APA standards, “corrective action must target the identified defect.” Id. Because

“the agency’s concern related to the evaluation of the proposals,” the corrective action, if any,

“should have been targeted to that issue.” Id. In other words, the Sheridan II court determined

that the agency’s decision to take corrective action did not satisfy the reasonable under the

circumstances standard because conducting the solicitation anew “had no relation” to the

identified defect in the procurement – an error in the evaluation of proposals. Id. at 154.

Similarly, in MCII Generator & Elec., Inc. v. United States, 2002 WL 32126244 (Fed.

Cl. Mar. 18, 2002), this court set aside the decision of the United States Army (“Army”) to

cancel plaintiff’s contract award and conduct a revised solicitation due to the Army’s failure to

identify a clear defect in the solicitation. There, the United States Army (“Army”) awarded the

plaintiff a contract for the procurement of tactical quiet power generators. A competing offeror

challenged the evaluation of proposals in the GAO, arguing that the Army’s evaluation of offers

was flawed. Specifically, the protestor alleged that the Army’s evaluation the past performance

factor and application of the solicitation’s pricing matrix were in error. The Army responded by

announcing it would reopen competition, solicit new proposals under a revised solicitation, and

conduct the procurement anew. Plaintiff protested the Army’s “corrective action” in this court.

Noting that a “corrective action” must be “rationally related to the defect that is identified,” id. at

*1, the court set aside the agency’s decision to take corrective action. The court found that the

record did not show that the Army had clearly identified a defect and that the court’s

“speculation” as to what the defect might be was “not enough to save the decision.” Id. Further,

assuming that the defect was in the evaluation of proposals, the court held that soliciting new

proposals was not rationally related to such a defect, stating that “re-evaluation is not the same

thing as re-solicitation.” Id. at *2.

These cases are discussed in depth in Sierra Nevada v. United States, 107 Fed. Cl. 735

(2012) (“Sierra Nevada”). The Sierra Nevada case is a post-award bid protest involving a

corrective action taken by the United States Air Force (“Air Force”). In Sierra Nevada, the Air

Force decided that corrective action was necessary because the administrative record was

incomplete and evidence of bias on the part of a program manager had tainted the procurement.

The court upheld the Air Force’s decision to cancel the protestor’s award and conduct a revised

solicitation for the twenty fixed-wing aircraft at issue.

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The Sierra Nevada court distinguished Sheridan II, citing the fact that “[w]hile the award

in Sheridan was made on the basis of evaluation of initial proposals only, the award in this case

was made after extensive post-proposal discussions between the Air Force and the offerors.” Id.

at 755. Indeed, the court noted that while both Sheridan II and MCII applied the rationally

related targeting test in a context where bids were resolicited when reevaluation to correct faulty

evaluations were what was called for, that test “should not be exported to [] more nuanced”

circumstances, such as those present in its case. Id. at 751. In other words, the court opined that

the enunciated targeting test was not absolute. That being so, “[t]he Court of Federal Claims has

more or less settled on a standard for review of challenges to corrective actions. It must be

reasonable under the circumstances.” Id.

Accordingly, there can be no “logical talisman [that] can solve” a case. Minersville Sch.

Dist. v. Gobitis, 310 U.S. 586, 596 (1940) (Justice Frankfurter commenting on the balance

between personal liberty and government), overruled on other grounds by W. Virginia State Bd.

of Educ. v. Barnette, 319 U.S. 624 (1943). No single factor can be transmuted into a magical

golden “talisman for assessing whether the corrective action was reasonable in the

circumstances.” Sierra Nevada, 107 Fed. Cl. at 751. For that reason, there can be no universal

test as to what constitutes appropriate corrective action. To be sure, reasons unrelated to a defect

in a solicitation, the obvious ones being legislative reduction of a program or legitimate

budgetary needs, could be grounds for corrective action. See. e.g., First Enter. v. United States,

61 Fed. Cl. 109 (Fed. Cl. 2004) (holding solicitations can be properly cancelled for budgetary

reasons); Santa Barbara Applied Research, Inc. v. United States, 98 Fed. Cl. 536, 537-39 (2011)

(upholding the Air Force's corrective action in response to budgetary cutbacks imposed by

OMB).

2. Analysis

In this case, the FBI has decided to take drastic “corrective action,” cancelling and

replacing four agreements awarded pursuant to the agency’s January solicitation for relocation

services. The agency intends to conduct a new procurement for these services pursuant to a

revised solicitation. As further explained below, the agency contends that this action is justified

primarily because the January solicitation is defective and those defects provide a rational basis

for their decision to amend to solicitation. 11

11

Plaintiff Lexicon, in addition to arguing that the corrective action violates APA standards, also

argues that it violates the implied covenant of good faith and fair dealing. Lexicon bases this

claim on an implied contract theory, whereby “‘[T]he issuance of a competitive solicitation

which generates responsive offers gives rise to an implied contract of fair dealing.’” Lexicon’s

Mot. for Prelim. Inj. at 23 (quoting Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273

(2004)). It is true that this court once exercised jurisdiction in bid protests pursuant to 28 U.S.C.

§ 1491(a) under an implied contract theory. But jurisdiction in procurement-related matters is

now founded on 28 U.S.C. § 1491(b), which authorizes the court to review agency procurement

decisions under the standards set forth in the APA. As the Federal Circuit recently explained,

“Congress intended the 1491(b)(1) jurisdiction to be exclusive where 1491(b)(1) provided a

remedy (in procurement cases).” Res. Conservation Grp., LLC v. United States, 597 F.3d 1238,

1246 (Fed. Cir. 2010) (emphases added). Thus, Lexicon’s challenge to the FBI’s procurement

decision must be reviewed exclusively under APA standards and not under an implied contract

theory. To the extent Lexicon requests relief based on the implied covenant of good faith and

fair dealing, the court sua sponte dismisses its claim for lack of subject matter jurisdiction.

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This court is tasked with determining if the agency’s decision to take this “corrective

action” was reasonable under the circumstances and, consequently, must examine the issues the

FBI has identified with the January solicitation to determine if the agency has articulated a

rational basis for its decision. The FBI lists the following reasons for their decision: (1)

resolving the CapRelo bid protest, (2) removing the 100% financial capability requirement, (3)

evaluation errors regarding the 100% financial capability requirement, (4) the task order

distribution system’s potential to conflict with the FAR, and (5) the FBI’s revised projected

requirements. The court will address each of these rationales in turn.

a. The CapRelo Protest Does Not Provide a Rational Basis for FBI’s Decision To Take the

Instant Corrective Action

The FBI contracting officer states in the July 16 note to file that the basis for the agency’s

decision to take corrective action was “to resolve the CapRelo protest.” AR at 2068. In context,

the note states that:

The FBI has decided to take corrective action to resolve the CapRelo protest. The

corrective action entails cancelling the Brookfield BPA. Additionally, the FBI

plans on cancelling the three remaining BPA holders, Allegiance, Lexicon, and

WHR. Pursuant to the BPA terms and conditions. . . .

Id. The problem with this rationale is that the gravamen of CapRelo’s protest, which contested

only the BPA awarded to Brookfield under the settlement agreement, was that “the fourth award

rightfully should have gone to the fourth-lowest-priced technically acceptable offeror,

[CapRelo].” AR at 1983. The protest notes that CapRelo “had no reason to protest” the first

three BPAs, awarded to WHR, Lexicon, and Allegiance, because “[t]he FBI was not obligated to

award four BPAs.” Id. The primary relief sought by CapRelo was “the terminat[ion] [of]

Brookfield’s award.” Id.

Because the CapRelo protest plainly did not implicate the first three awards, made to

WHR, Lexicon, and Allegiance, it cannot provide a rational basis for the FBI’s decision to

terminate those awards.

b. Removal of the 100% Financial Capability Requirement Cannot Provide a Rational Basis for

the Instant Decision

In the July 16 and July 24 notes to file, the contracting officer found that the January

solicitation’s requirement that offerors certify their financial capability to provide 100% of the

FBI’s projected relocation services was no longer needed. AR at 2068; AR at 2075. In those

memoranda, the contracting officer stated that the requirement was “outdated” because the

agency included it in case the FBI selected “a single vendor” and the January solicitation has

identified “adequate competition to satisfy the program.” AR at 2068. The contracting officer

further commented that the requirement “was originally included as a response to circumstances

created by the housing market downturn” and, thus, “is no longer a concern.” AR at 2075. The

contracting officer concluded that, in removing the requirement, “the underlying pricing

assumption will be effected [sic]” and this “necessitates revised pricing.” Id.

Nevertheless, the contracting officer’s bald assertions in the notes to file will not suffice

because the agency failed to examine the relevant data and articulate a coherent and reasonable

explanation for their decision. Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43; Impresa Construzioni,

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238 F.3d at 1333. The administrative record is bereft of any findings or other evidence to

support or explain the agency’s conclusory ipse dixits.

Although defendant argues, in brief, that removal of the financial capability requirement

benefits the agency by “lowering barriers to entry,” thus yielding “more competitive pricing,”

this rationale is not stated in the administrative record. D’s Res. to Mot. for Prelim. Inj. at 32.

Moreover, the contracting officer did not make any finding regarding the likelihood or number of

potential new offerors participating in the revised solicitation. AR at 2068; AR at 2075.

Notably, this solicitation was limited to General Services Administration Schedule 48,

Transportation, Delivery, and Relocation Solutions vendors. 12 AR at 48. There is no evidence

in the record that the agency determined new offerors would emerge from this relatively narrow

pool of eligible offerors.

The record is also completely devoid of any evidence showing the agency determined

that a revised solicitation would produce cost savings in the form of lower bids. As plaintiff

WHR noted at oral argument, “nowhere in the administrative record is there an indication that

[the January solicitation’s participants] would have bid differently” if the requirement were not

included. O.A. Trn. at 13. The contracting officer merely found that “revised pricing” was

needed, not that a pricing revision would result in savings to the FBI. AR at 2075. This naked

conclusion does not supply a rational basis for the instant decision. See, e.g., Motor Vehicle

Mfrs. Ass'n, 463 U.S. at 43 (1983) (holding that the agency decision must be supported by

evidence in the record and that the court “may not supply a reasoned basis for the agency's action

that the agency itself has not given” (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

Accordingly, the FBI’s action in this case was not “reasonable under the circumstances.”

DGS Contract Serv., Inc. v. United States, 43 Fed. Cl. 227, 238 (1999). The dearth of any

findings regarding the impact of this decision and explanation of the agency’s reasons for the

removing the requirement is fatal to the agency’s assertion that removal provides a rational basis

for the instant decision. Even given the “strong presumption of regularity and good faith”

afforded the decisions of federal agencies, removal of the 100% financial capability requirement

cannot sustain the FBI’s decision. Am-Pro Protective Agency, 281 F.3d 1239-41.

c. Alleged Evaluation Flaws Cannot Provide a Rational Basis for the FBI’s Decision

The FBI also avers that its failure to review the documents supporting the offerors’

certifications regarding the 100% financial capability requirement for more than facial

inconsistencies provides a basis for adopting the chosen course of corrective action. AR at 984-

1135; D’s Resp. to WHR’s Mot. for Prelim. Inj. at 26-27. Although the FBI originally defended

its evaluation in the Brookfield litigation before the GAO, it now, after “eventually seeing the

merit” to Brookfield’s argument, contends that the evaluation provides a basis for cancelling the

three BPAs and redrafting the solicitation. D’s Resp. to WHR’s Mot. for Prelim. Inj. at 26-27.

The court finds that the purported inadequacy of the FBI’s evaluation of the documents

does not provide a rational basis for the instant decision. The FBI contracting officer’s response

to the Brookfield protest furnishes the record with ample reasons, in the agency’s own words, as

to why this alleged flaw cannot provide such a basis.

12

The General Services Administration lists 19 registered Schedule 48, category 653 7 “Move

Management Services” contractors, other than the offerors in this case. (Available online at:

http://www.gsaelibrary.gsa.gov/ElibMain/SinDetails?executeQuery=YES&scheduleNumber=48

&flag=&filter=&specialItemNumber=653+7).

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The contracting officer stated that agency evaluators were “instructed not to evaluate the

quality of the requested [supporting] documents.” AR at 1278. In lieu of a more in depth

review, evaluators were “to verify if the supporting documentation included any explicit

contradictory commentary that would have stated an inability to meet the requirement.” Id. The

contracting officer stated the agency intended to take offerors “at their word” and supporting

documentation was requested merely to “formalize the process.” Id.

The contracting officer’s rationale for this approach is also clear. In the contracting

officer’s view, “[s]elf-certification was the only means to hold a vendor accountable for their

statement of capability.” AR at 1281. The contracting officer had been advised by the FBI’s

internal auditing staff that the only alternative to self-certification was a “full blown audit” of

each offeror. Id. at 1282. Finding a full blown audit to be impractical, the contracting officer

determined self-certification was preferable to no certification.

The contracting officer’s response also noted that during the solicitation’s question and

answer period, offerors asked the FBI if there were required or preferred supporting documents.

The FBI responded that “[s]elf certification is at the respondent’s discretion.” Id. at 1282. While

this agency response may be “inartful,” as the parties remarked at oral argument, it is clear that

the agency intended to afford offerors a wide leeway in selecting what constituted appropriate

supporting documentation. O.A. Trn. at 51-53; 71-72. The contracting officer also pointed out

that the solicitation’s evaluation criteria “did not state that the FBI would evaluate the individual

documents.” AR at 1278.

The record in this case reflects a clear and reasonable rationale for the FBI’s evaluation

of the 100% financial responsibility requirement. The FBI faced the choice of either relying on

offerors’ self-certifications or conducting a full financial audit of each firm. It was well within

the FBI’s broad discretion to choose self-certification. It is also within the agency’s broad

discretion to decide upon the appropriate level of review. The agency’s decision to evaluate

offerors’ supporting documentation for facial inconsistency instead of a more comprehensive

review was buttressed by the sound reason that the agency sought to avoid increased

administrative costs and delays. Given this greater context of the alternatives available to the

FBI, the agency’s decision to facially review the documents for inconsistencies was not arbitrary

or capricious.

Even assuming, arguendo, that the requirement’s evaluation was a defect in the January

procurement, the FBI’s proposed corrective action would still fail the Sheridan II and MCII

targeting tests. Both of those cases stand for the proposition that, generally, corrective actions

regarding flaws in the evaluation process must be targeted at those evaluation issues and cannot

consist of wholesale resolicitation. Here, if the FBI’s review of the financial capability

documents was errant, the agency has the power to further review those documents. This readily

available, more narrowly-tailored remedy precludes the alleged evaluation flaw from providing a

rational basis for the instant decision. As the Sheridan II court stated, the Court of Federal

Claims generally “has rejected corrective action to resolicit proposals because of a perceived

evaluation error.” Sheridan II 95 Fed. Cl. at 153 (citing Delaney Constr. Corp. v. United States,

56 Fed. Cl. 470 (2003)).

d. Potential Conflict with the Federal Acquisition Regulations

Defendant also contends that the January solicitation’s system of distributing task orders

on a rotating basis is a flaw that provides a rational basis for its corrective action, on the ground

that this system contravenes the Federal Acquisition Regulations’ procedure for orders over

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$150,000. The court finds that this purported issue cannot provide a rational basis for cancelling

the agency’s corrective action because the solicitation expressly allows the agency to opt out of

the rotational system, on a case by case basis.

The solicitation provided that work orders would be assigned to the BPA holders on a

rotating basis. AR at 49. The FBI intended to treat each employee relocation as a separate task

order and assign it to the firm next in the rotation. AR at 2075. Notably, the solicitation advised

offerors that “there may be situations that occur which interrupt the flow in the order rotation.”

AR at 11. Further, the solicitation stated that “[t]he FBI reserves the right on a case-by-case

basis to waive the rotations.” Id. Defendant contends this system has the potential to violate

section 8.405-3 of the FAR if task orders exceed a certain monetary limit, referred to as the

Simplified Acquisition Threshold (“SAT”). AR at 2075; 48 C.F.R. 8.405-3.

Section 8.405-3 of the FAR mandates that task orders exceeding the SAT, currently set

by statute at $150,000, see 48 C.F.R. 2.101, undergo another round of competition. 48 C.F.R.

8.405-3(c)(2)(iii)(A)(1). Agencies are directed to issue a separate request for quote to the pool of

BPA holders and invite them to bid for the task order. Id. Defendant contends this provision

cannot be reconciled with the solicitation’s rotating task order system and, therefore, is a valid

basis for the agency’s decision in this case.

It is noteworthy that there is no evidence in the record regarding how often, if at all, the

FBI’s issue task orders would exceed the SAT, triggering this FAR provision. Plaintiffs have put

forth rough estimates, suggesting that the average relocation will cost roughly $58,500. O.A.

Trs. at 26-28; 45. As WHR’s counsel pointed out, this sum is “less than half” of the SAT. Id. at

27. However this speculative price estimate does not address the likelihood of outliers over the

SAT, a topic the administrative record is silent on.

The FBI contracting officer did not elaborate on the likelihood of this possibility, simply

stating that the planned system “did not comply” with the FAR. AR at 2075. The contracting

officer noted that “the total dollar value of the order may vary on an individual transfer basis.”

Id. Consequently, the contracting officer recommended a new approach, stating the agency

“believes task orders should be viewed within increments of time.” Id. This methodology would

cause all task orders to “exceed the simplified acquisition threshold.” Id.

Curiously, the contracting officer suggests solving the potential problem of some task

orders exceeding the SAT by changing the method for grouping task orders so all of them exceed

the SAT. The sole cited reason for this change is that the costs of individual transfers “vary.” Id.

There is no explanation as to why variance between the costs of relocations justifies this change

in grouping methodology. Regardless, this court’s task is to determine whether the January

solicitation’s rotational system conflicts with the FAR, not whether the FBI can manufacture a

conflict through a change in methodology.

To be sure, the solicitation’s rotating task order system has the potential to produce

orders over the SAT. AR at 2075. It is also clear the FAR requires that orders of this size be

competitively awarded instead of simply assigned. 48 C.F.R. 8.405-3(c)(2)(iii)(A)(1). But this

is only problematic if the terms of the solicitation necessitate conflict with the FAR. This is not

the case because the solicitation allows the agency to circumvent the rotation system, when

needed, at its discretion. AR at 11.

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Finding no direct conflict between the FAR and the solicitation, even in the uncertain

event that a task order exceeds the FAR, this court does not consider the rotational system a

sufficient basis to void the January solicitation.

e. The FBI’s Updated Requirement Projection

The FBI also argues that its projection of a 40 percent reduction in the agency's

anticipated number of relocations provides a reasonable basis for corrective action. Def.’s Resp.

at 23-24. In the January solicitation’s Statement of Work, the FBI observed that it “transfers

annually approximately 2,000 employees” and “estimate[d] an annual requirement to relocate

2,000 employees.” AR at 9-10, 47-48. But in the July 24 note to file, the contracting officer

stated that “FBI budget forecasting has significantly reduced the anticipated scale of the

requirement.” AR at 2074. The contracting officer noted, “current forecasts anticipate fewer

than 900 transfers in Fiscal Year 14 and an overall 40% reduction in anticipated effort/program

price.” Id. The contracting officer concluded that these changes would “likely alter price build-

ups.” Id.

The court finds that this changed projection cannot provide a rational basis for the instant

corrective action because it was included in order to assist offerors with pricing, not to guarantee

the agency would transact a particular volume of business through the BPAs. Furthermore, both

the impact of the sequestration and possibility of decreased volume of business were a known

risk to the offerors.

First, the January solicitation explicitly disclaimed responsibility for the solicitation’s

volume estimate and bound offerors to perform regardless of the agency’s actual requirements.

AR at 10. The solicitation made clear that information, such as the volume estimate, had been

provided “to assist prospective Contractors in examining the FBI’s requirements,” not to provide

a demand quantity. Id. It also stated that “successful contractors will be required to perform

regardless of the actual experience of the FBI in the future.” Id. In the Statement of Work, the

agency noted that the FBI made “no guarantee, express or implied, that future experience will

resemble past experience, either in volume or characteristics,” and expressly “required

[contractors] to perform regardless” of actual demand. AR at 10, 47-48. This clear statement

prevents changed projections from providing a rational basis for the instant decision.

Second, the court notes that knowledge of the then impending budget sequestration—

which originally had been set to begin on January 1, 2013, but had been postponed by two

months under the American Taxpayer Relief Act of 2012—was widespread in January 2013. 13

13

The sequestration measure, which was originally passed as part of the Budget Control Act of

2011, was an austerity measure “intended to serve as an incentive for the Joint Select Committee

on Deficit Reduction . . . to come to a deal to cut $1.5 trillion over 10 years.” Dylan Matthews,

The Sequester: Absolutely Everything You Could Possibly Need To Know, in One FAQ,

WASHINGTON POST, Wonkblog, March 1, 2013, at

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/02/20/the-sequester-absolutely-

everything-you-could-possibly-need-to-know-in-one-faq/. Although the sequestration cuts—

popularly known as the “fiscal cliff”—were set to take effect on January 1, 2013, Congress

passed a deal on January 1, 2013, that delayed most of the cuts for another two months. See

Devin Dwyer et al., “Fiscal Cliff”: Congress Approves Compromise Aimed at Averting

Recession, Jan. 1, 2013, ABC News, available at http://abcnews.go.com/Politics/OTUS/fiscal-

cliff-congress-passes-compromise-aimed-averting-recession/story?id=18108091.

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Accordingly, the court finds that any prospective bidder would have been on notice of the

possibility that the FBI’s projected demand might be revised downward.

Plaintiffs and plaintiff-intervenor also point to the historical data supplied by the FBI

showing a downward trend in agent relocations. AR at 146. They aver that this data gave

bidders notice that the volume of business could potentially decrease. WHR’s Mot. for Prelim.

Inj. at 20. In essence, plaintiffs and plaintiff-intervenor argue that the economic climate and the

agency’s downward demand trends, coupled with the agency’s explicit denial of responsibility

for the projections, undercuts the argument that revised projections can provide a rational basis

for a revised solicitation.

In light of the fact that the possibility of sequestration was common knowledge and that

the January solicitation, by its terms, did not commit the FBI to purchasing a specific quantity of

relocation services, the court finds that updating the FBI’s requirement projections is not, under

the circumstances, a reasonable justification for cancelling the three BPAs.

*********

Having addressed each of the stated bases for the instant decision, the court finds that the

agency did not have a rational basis, such that its decision to take corrective action was

reasonable under the circumstances. Next, the court turns to plaintiffs’ motions for injunctive

relief.

B. Motion for Injunctive Relief

1. Standards

The Tucker Act grants this court the power to award “any relief that the court considers

proper, including declaratory and injunctive relief” in bid protest cases. 28 U.S.C. § 1491(b)(2).

To decide whether a permanent injunction is warranted, “the court must consider whether (1) the

plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court

withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant

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

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

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

Consideration of these factors mirrors the “flexible” balancing approach taken in the

preliminary injunction context. Standard Havens Products, Inc. v. Gencor Indus., Inc., 897 F.2d

511, 513 (Fed. Cir. 1990). This approach is “rooted in ‘equity practice with a background of

several hundred years of history,’” Serco, Inc. v. United States, 101 Fed. Cl. 717, 721 (2011)

(citing Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)). No individual factor carries dispositive

weight and the court must “weigh and measure each factor against the other factors and against

the form and magnitude of the relief requested.” Standard Havens Products, 897 F.2d at 513.

Thus, it is not required that the merits of a plaintiff’s claims be “absolutely certain, wholly

without doubt . . . if the other elements are present (i.e., the balance of hardships tips decidedly

toward [the] plaintiff), it will ordinarily be enough that the plaintiff has raised questions going to

the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for

litigation.” Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.

1953)). This “sliding scale” approach is thus akin to Judge Learned Hand’s formula for

determining liability in negligence suits. Serco, 101 Fed. Cl. at 721 (citing United States v.

Carroll Towing, 159 F.2d 169, 173 (2d Cir. 1947)).

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2. Analysis

a. Success on the Merits

The court finds plaintiffs have succeeded on the merits of their case for the reasons stated

above. Nevertheless, this alone is not sufficient to grant permanent injunction. PlanetSpace,

Inc., 92 Fed. Cl. at 520. Accordingly, the court turns to the other balancing factors.

b. Irreparable Harm

“When assessing irreparable injury, ‘[t]he relevant inquiry . . . is whether plaintiff has an

adequate remedy in the absence of an injunction.’” CW Gov’t Travel, Inc. v. United States, 110

Fed. Cl. 462, 494 (2013) (quoting Overstreet Elec. Co. v. United States, 47 Fed. Cl. 728, 743

(2000)).

As the court explained in the temporary restraining order issued in this case, plaintiffs

will suffer irreparable injury if forced to compete a second time for awards they have already

won. See ECF Dkt. No. 58 (Fed. Cl. Aug. 12, 2013); Sheridan Corp. v. United States, 94 Fed. Cl.

663, 669-70 (2010) (“Sheridan I”). 14 In Sheridan I a federal government agency awarded the

plaintiff a contract to construct an aircraft hangar. In response to a protest by another offeror

challenging the evaluation of proposals, the agency proposed to conduct a new procurement with

revised bids. Although the agency did not formally terminate the plaintiff’s contract, it did

suspend the plaintiff’s performance pending completion of the new procurement. The plaintiff

protested in this court and moved for a preliminary injunction. This court granted the motion.

The court found that the plaintiff would suffer irreparable harm, in part because it would be

faced “with an unnecessary recompetition for the contract it previously won.” Id. Because this

new competition necessarily put the plaintiff’s contract “in jeopardy,” the court held that a

preliminary injunction was necessary to prevent irreparable harm. Id.

In Sheridan II, the court granted a permanent injunction, adopting its irreparable harm

analysis from Sheridan I. “Unless the agency’s corrective action is enjoined,” the court

explained, “Sheridan faces irreparable harm from an unnecessary recompetition for a contract it

has already won.” Sheridan II, 95 Fed. Cl. at 155. This was so because “without an injunction,

Sheridan may lose the contract and the associated revenues.” Id. Moreover, “[e]ven if Sheridan

is able to retain the contract following the proposed resolicitation, Sheridan would have been

forced to recompete in circumstances where its winning price had already been revealed to the

competition.” Id.

Though not identical, the case here is similar. Here, as in Sheridan, plaintiffs are being

forced to compete for awards they have already obtained. The proposed new procurement will

be conducted to replace the existing BPAs. Because the new procurement effectively puts

plaintiffs’ awards in jeopardy, it imposes irreparable harm for this reason alone.

Moreover, as in Sheridan, the new procurement will harm plaintiffs and plaintiff-

intervenor by requiring them to compete after having exposed their pricing in the initial

procurement. Even if the aforementioned changes to the solicitation’s pricing system can

14

See also Sys. Application & Technologies, Inc., v. United States, 100 Fed. Cl. 687, 720-21

(Fed. Cl. 2011) (stating that irreparable harm is satisfied when a corrective action would cause a

protestor to “both lose a valuable contract that it has lawfully won and be forced to expend

additional resources to recompete in [unequal] circumstances.”).

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mitigate the harm, they cannot completely eliminate it. Allegiance’s, Lexicon’s, and WHR’s

exposed pricing exacerbates the irreparable harm another round of competition would cause.

Finally, further extending or utilizing the Brookfield task order would irreparably harm

WHR, Allegiance, and Lexicon for the same reason given in Sheridan I—it would effectively

defeat the validly awarded BPAs. In short, WHR, Lexicon, and Allegiance have been awarded

valid BPAs, and any purported “corrective action” designed to deprive them of the benefits of

those BPAs will necessarily work irreparable harm.

In sum, plaintiffs’ showing of irreparable harm is enough to satisfy the minimum this

court requires. As the Sheridan I court noted, an “unnecessary recompetition” for an award

already won constitutes irreparable harm. Sheridan I at 155.

c. Balance of the Hardships

In considering the balance of the hardships, this court weighs the irreparable harm

plaintiffs would suffer absent an injunction against the harm such an injunction may inflict on

defendant and defendant-intervenors. See Sheridan I, 94 Fed. Cl. at 670 (citing Reilly’s

Wholesale Produce v. United States, 73 Fed. Cl. 705, 715-16 (2006)). In this case, defendant

and defendant-intervenors have shown no pertinent hardship to outweigh plaintiffs’ and plaintiff-

intervenor’s irreparable injury.

In her declaration, the contracting officer states that “[t]he FBI will be harmed if it is

forced to go without relocation services.” Declaration of Dina Olibah ¶ 6. Specifically, she

explains that the logistics of relocating FBI agents are complicated and that procuring relocation

services enables the FBI to avoid “self-moves,” whereby the agent being relocated must manage

all the logistical burdens. Id. If unable to procure these services, the FBI “may impede [agents’]

arrival [at their new duty stations]” within the 90-day period the FBI requires. Id. If the FBI

were enjoined from conducting a new procurement, the contracting officer declares that would

be forced to do one of the following: either (1) obtain relocation services with a BPA directly

from a GSA Schedule-holder, (2) extend the Brookfield task order indefinitely even though this

would be “improper in any event,” or (3) discontinue the relocation services program. Id. ¶ 7.

Moreover, she insists that enjoining the FBI from extending the Brookfield task order would

harm the FBI “if this results in a period when we will be without relocation services.” Id. ¶ 8.

Here, she notes that the FBI would require a six-week transition period during which Brookfield

could be replaced by a follow-on contractor. Id.

The court is not persuaded by this reasoning because an injunction need not require the

FBI to go without relocation services for any period of time. An injunction can be tailored to

allow the FBI the needed transition period to replace Brookfield with a follow-on contractor.

Further, the court disagrees with the contracting officer’s statement that an injunction prohibiting

both a new procurement and another extension of the Brookfield task order would require the

FBI to either forgo the BPA vehicle or cancel the relocation services program altogether.

Plaintiffs’ BPAs provide a ready alternative to this parade of horribles.

Brookfield advances a different set of hardship arguments. In his declaration,

Brookfield’s director of pricing and sales finance restates Brookfield’s view that its GAO protest

was meritorious and that the BPA awards to WHR, Lexicon, and Allegiance were flawed. He

avers that an injunction would irreparably harm Brookfield because “Brookfield would be

deprived of an opportunity to submit a proposal in response to [the revised solicitation] that

squarely indicates that offerors need not establish 100 percent financial capability to receive an

award.” Declaration of Brian McEleney ¶ 4.

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Mr. McEleney’s declaration assumes that Brookfield did not have a fair opportunity to

compete for the BPAs in the procurement conducted pursuant to the January solicitation. For the

reasons explained above, that assumption is false and, thus, this argument fails.

Accordingly, neither defendant nor defendant-intervenors have demonstrated any

hardship outweighing the irreparable harm to plaintiffs and plaintiff-intervenor.

d. Public Interest

This court’s statement in the temporary order with respect to public interest applies here

as well:

[G]iven the unusual chain of events that led to this bid protest, and given what the

court has already observed about the likelihood of success on the merits, the court

believes that the public interest would be served by granting a [preliminary

injunction]. Specifically, the public has an interest in the integrity of the

procurement system that is served when government officials are enjoined from

taking arbitrary and capricious action. See CW Gov’t Travel, Inc. v. United

States, 61 Fed. Cl. 559, 576 (2004).

ECF Dkt. No. 58 (Fed. Cl. Aug. 12, 2013).

It is also worth adding as a final point that if the FBI’s “corrective action” in this case

were not enjoined, it would signify that the government’s power to take “corrective action” is

nigh unlimited. The requirement that corrective action be “targeted” or “rationally related” to an

existing defect in the initial procurement is essential to the integrity of the procurement system.

In this case, it is clear that the “corrective action” was not targeted or rationally related to any

actual defect and it is therefore crucial to the public interest that the FBI’s “corrective action” be

enjoined.

3. The FBI’s Extensions of the Brookfield Task Order

The plaintiffs in this case also petition the court to enjoin the FBI from extending

Brookfield’s non-competitively awarded task order, task order J-FBI-08-014/A2G0801404, as

the FBI has done periodically since the task order’s original expiration on September 30, 2012.

The plaintiffs aver that these non-competitive extensions are improper because the awardees’

BPAs provide the agency with a ready competitively-awarded alternative.

Notably, the agency’s decision to extend the Brookfield task order contemplated an

interim period “until new BPAs are established.” AR at 2076. The FBI contracting officer

originally estimated this period would last three months. Id. The contracting officer based the

decision to extend Brookfield on the “1) operational costs, 2) transition costs & risks, and 3) the

integrity of the procurement system.” Id. It is clear that the contracting officer considered these

factors in light of this interim period’s expected brevity. The contracting officer noted that “it is

evident that the 3 current BPA holders offer lower and more competitive pricing fee structures.

However, regardless of whichever task order vehicle chosen (Brookfield or the 3 BPA holders),

this would only be used during the short interim period.” Id. In sum, the administrative record

provides rationales for the extension of the Brookfield task order solely until the agency arrived

at a more permanent solution.

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Because this court is permanently enjoining the FBI from conducting a revised

solicitation to replace the January solicitation’s awards, there is no basis for further extensions of

the Brookfield task order. Nor is there a basis for utilizing the Brookfield task order as presently

extended, except as necessary to accommodate a reasonable transition period in order to install

plaintiffs and plaintiff-intervenor. The Federal Acquisition Regulations and the Competition in

Contracting Act set forth specific procedures for, and mandate that federal agencies engage in,

competitive acquisition. 41 U.S.C. § 3301; 48 C.F.R. 6.01, 8.405-6. As discussed above, the

FBI is required by law to compete task orders issued pursuant to the Federal Supply Schedule

that exceed the Simplified Acquisition Threshold, as the Brookfield task order does. 28 C.F.R.

8.405-2(c)(3)(ii). Hence, any continued extensions of Brookfield’s non-competitive task order or

utilization of that task order is unlawful given the option of the plaintiffs’ competitively-awarded

BPAs.

III. CONCLUSION

For the foregoing reasons, WHR’s CROSS-MOTION for judgment on the administrative

record is GRANTED. Lexicon’s CROSS-MOTION for judgment on the administrative record is

GRANTED, except insofar as it asserts a claim for breach of the implied covenant of good faith

and fair dealing. Defendant’s CROSS-MOTIONS for judgment on the administrative record are

DENIED.

Wherefore, the United States and its officers, agents, servants, employees,

representatives, and all other persons acting in concert with them with respect to the subject

procurement are hereby PERMANENTLY ENJOINED from (1) cancelling the Blanket Purchase

Agreements awarded to WHR Group, Inc., Lexicon Government Services, LLC, and Franconia

Real Estate Services d/b/a/ Allegiance Relocation Services, (2) conducting a procurement to

replace those Blanket Purchase Agreements, (3) extending the Brookfield Relocation, Inc. task

order pursuant to which those services are currently procured by the Federal Bureau of

Investigation, and (4) procuring relocation services pursuant to the Brookfield task order, except

as necessary to accommodate a reasonable transition period to install the plaintiffs as vendors.

Further, the Clerk is hereby directed to take the necessary steps to dismiss the WHR

Group, Inc., and the Lexicon Government Services, LLC matters.

IT IS SO ORDERED.

s/Lawrence J. Block

Lawrence J. Block

Judge

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