# Palantir Usg, Inc. v. United States

> United States Court of Federal Claims · November 3, 2016 · 129 Fed. Cl. 218

URL: https://www.frixlaw.com/law-library/cases/4097186

## Case

- **Full name:** PALANTIR USG, INC., Protestor, v. UNITED STATES, Defendant
- **Court:** United States Court of Federal Claims
- **Decided:** November 3, 2016
- **Citations:** 129 Fed. Cl. 218; 2016 U.S. Claims LEXIS 1716; 2016 WL 6649226
- **Precedential status:** Published
- **Opinion:** Opinion by Horn
- **Judges:** Marian Blank Horn
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4097186

## How later opinions describe it (automated extraction)

- stating that in order to “supplement the administrative record, allegations of bias and/or bad faith must be based on ‘hard facts’ and sufficiently well-grounded, and not merely innuendo or suspicion.”
- finding supplementation necessary due to the “highly technical nature” of some protest issues

## Opinion text

REDACTED OPINION

In the United States Court of Federal Claims
No. 16-784C
Filed: November 3, 2016
Redacted Version Issued for Publication: November 9, 20161

* * * * * * * * * * * * * * *
PALANTIR USG, INC., *
* Pre-Award Bid Protest; Cross-
Protestor, * Motions for Judgment on the
v. * Administrative Record;
* Commercial Availability; 10 U.S.C.
UNITED STATES, * § 2377; Bad Faith; Supplementation
* to the Administrative Record;
Defendant. * Permanent Injunction.
*
* * * * * * * * * * * * * * *

Hamish Hume, Boies, Schiller & Flexner LLP, Washington, D.C., for protestor.
With him were Stacey K. Grigsby, and Jon R. Knight, Boies, Schiller & Flexner LLP,
Washington, D.C.

Domenique G. Kirchner, Senior Trial Counsel, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, D.C., for defendant.
With her were Scott A. MacGriff, Trial Attorney, Commercial Litigation Branch, Douglas
K. Mickle, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr.,
Director, Commercial Litigation Branch, and Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, Department of Justice. Of counsel were Scott
N. Flesch, Major Lawrence P. Gilbert, Evan C. Williams, and Frank A. March, United
States Army Legal Services Agency, and Debra J. Talley and Daniel J. Beuke, United
States Army Materiel Command.

OPINION

1 This opinion was issued under seal on November 3, 2016. The parties were asked to
propose redactions prior to public release of the opinion. This opinion is issued with some
of the redactions that the parties proposed in response to the court’s request. Words
which are redacted are reflected with the notation: “[redacted].”
HORN, J.

Palantir USG, Inc.2 (Palantir) and Palantir Technologies Inc.3 filed a pre-award bid
protest in this court on June 30, 2016, challenging the United States Department of the
Army, Army Contracting Command, Aberdeen Proving Group’s (the agency) Request for
Proposals No. W56KGY-16-R-0001 (the solicitation). Protestor Palantir USG, Inc. “is a
corporation incorporated under the laws of the State of Delaware, having its principal
place of business in Palo Alto, California.” Palantir USG, Inc. and Palantir Technologies
Inc. filed suit in the United States Court of Federal Claims after the United States
Government Accountability Office (GAO) denied Palantir USG, Inc.’s GAO protest. See
generally Palantir USG, Inc., B-412746, 2016 WL 3035029 (Comp. Gen. May 18, 2016).4

As indicated at the GAO, “[t]he solicitation seeks a single contractor to be the
system data architect, developer, and integrator of DCGS–A2 [Army’s Distributed
Common Ground System-Army Increment 2], which is the second increment of the
DCGS–A. DCGS–A is the Army’s primary system for the processing and dissemination
of multi-sensor intelligence and weather information to the warfighter.” Id. at *1.

Palantir asserts that the Army acted arbitrarily and capriciously when it issued the
DCGS-A Increment 2 solicitation for a developmental contract, because Palantir claims it
had identified to the Army a commercially available technology that Palantir believes can
satisfy the Army’s requirements. According to Palantir, “Palantir has developed a
technology that solves the needs of DCGS.” Palantir claims that the data management
platform that Palantir has to offer, also called the Palantir Gotham Platform, was “initially
developed between 2004 and 2009 with the help of an investment from, and a partnership
with, the venture capital arm of the Central Intelligence Agency.” According to Palantir,
since “2010, Palantir has successfully provided the Palantir Gotham Platform to
numerous customers, including federal and local law enforcement agencies, the United
States Marine Corps, the United States Special Operations Command (‘SOCOM’), the
Defense Intelligence Agency, and numerous other government agencies (as well as
numerous private sector companies).” The parties have stipulated that “[t]he Palantir
Gotham Platform is a Data Management Platform that is licensed to customers on a
commercial item basis,” and that “[g]overnment agencies have procured the Palantir
Gotham Platform and related services on a commercial item basis.” Palantir argues that,

2 Palantir Technologies Inc. “owns one hundred percent of the stock” of Palantir USG,
Inc.
3 As discussed below, on August 22, 2016, the court granted defendant’s motion to
dismiss Palantir Technologies Inc. from the above captioned protest.
4 Although the undersigned has high regard for GAO decisions, this court is not bound by
decisions of the GAO. See CBY Design Builders v. United States, 105 Fed. Cl. 303, 341
(2012) (citing Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4 (Fed. Cir.
2009) (GAO decisions are “not binding” authority, but may be “instructive in the area of
bid protests.”)).

2
as written, “[t]he Solicitation for DCGS-A2 makes it impossible for Palantir to offer its Data
Management Platform as a commercial or nondevelopmental item to satisfy the Army’s
requirements” (capitalization and emphasis removed) because the solicitation only
requested proposals for the development of the required technology.

FINDINGS OF FACT

In explaining the origin and development of the DCGS-A, the contracting officer’s
statement during the GAO protest indicated:

Combat operations in Kuwait and Iraq in the early 1990’s demonstrated the
military potential of information dominance, and sparked a transformation in
the use of information technology in intelligence operations. Subsequently,
the Department of Defense instituted an initiative to unify Intelligence,
Surveillance and Reconnaissance architectures, and enhance the
acquisition of manned and unmanned airborne sensors and associated
ground processing systems. This initiative resulted in a requirement for a
Distributed Common Ground/Surface Systems (DCGS), made up of Army,
Air Force, Navy and Marine Corps ground processing systems that can
share information across the Joint Force. The Army component of DCGS is
the Distributed Common Ground System – Army (DCGS-A). Today, DCGS-
A has become the Army’s primary system for processing and dissemination
of multi-sensor intelligence and weather information. It is deployed
worldwide in support of intelligence operations including all Theaters of
Operation.

The background section of the Performance Work Statement for the solicitation
at issue explained:

The DCGS-A program was created in response to the Department of
Defense (DoD) Distributed Common Ground/Surface System (DCG/SS)
Mission Area Initial Capabilities Document (MA ICD), which captured the
overarching requirements for an Intelligence, Surveillance, and
Reconnaissance (ISR) Family of Systems that will contribute to Joint and
combined Warfighter needs. The MA ICD has since been updated to an
Enterprise ICD. DCGS-A facilitates “Seeing and Knowing” on the
battlefield—the fundamental precursor to the understanding that underpins
the Army’s Mission Command concept. DCGS-A contributes to visualization
and situational awareness (SA), thereby enhancing tactical maneuver,
maximizing combat power and enhancing the ability to operate in an
unpredictable and changing environment throughout the operational
spectrum. It facilitates the rapid planning, execution, and synchronization of
all war fighting functions resulting in the Current and Future Force’s ability
to operate within the enemy’s decision cycle.

3
DCGS-A is the Army’s primary system for processing and dissemination of
multi-sensor intelligence and weather information to the Warfighter. It is
deployed worldwide in support of intelligence operations, including all
Theaters of Operation. DCGS-A must remain interoperable and compatible
with the Joint Command System infrastructure and mission applications.

DCGS-A Increment 1 is the ISR component of the modular and future force
Mission Command System (MCS) and the Army’s primary system for ISR
tasking of sensors, processing and exploitation of data, and dissemination
of intelligence (TPED) information about the threat, weather, and terrain at
all echelons. A high percentage of Increment 2 functionality has already
been developed under the DCGS-A Increment 1 efforts. DCGS-A Increment
2 will leverage the DCGS-A hardware components fielded across the Army
under DCGS-A Increment 1.

According to the defendant, DCGS-A Increment 2, the subject of the solicitation at
issue, “will introduce a new and modernized data management architecture (DMA) using
a modular system approach to perform Army intelligence analysis capabilities.” As
reflected in the Army’s post-hearing comments submitted to the GAO, and quoted in the
GAO decision:

DCGS-A is intended to combine all intelligence software/hardware
capabilities within the Army into one program with the ability to access and
be accessed by, not only Army intelligence and command components, but
also the other members of the broader distributed common ground/surface
system. It is composed of many software products-commercial,
government, and open source-as well as software integration that allows all
the different products and components to communicate and operate
seamlessly.

Palantir USG, Inc., B-412746, 2016 WL 3035029, at *2.

The Performance Work Statement for the solicitation at issue stated that the
requirements of DCGS-A Increment 2 included the “development of new data
architecture, standards based enhanced visualization and analytical tools, cloud
computing and ‘big data’ analytic capabilities; cyber analytics and data integration,
visualization capabilities, Cyber Operations, Interoperability, Counter
Intelligence/HUMINT, Weather, GEOINT, Geospatial Engineering and Sensor
Management,” and that “[t]hese efforts include Software Development, Capability
Enhancements, Integration, Limited Fielding and Training support, Maintenance, and
Support for logistics development, for a period of performance of six years from contract
award.” The draft version of the Performance Work Statement for the solicitation at issue
stated that “[t]he DCGS-A Increment approach utilizes spiral deliveries to maintain
interoperability with Army and Joint ISR [Intelligence, Surveillance and Reconnaissance]
architectures and to address capability insertion and enhancements. This system must
remain interoperable and compatible with the Joint command system infrastructure and

4
mission applications.” As indicated by the contracting officer who issued the solicitation,
“[t]he DMA [i.e., Data Management Architecture] will serve as the architecture foundation
and the heart with which the rest of the capabilities will depend on to function. The DMA
development is therefore the focus of the first task order executed under the DCGS-A
Increment 2 contract.”

The parties have stipulated that “[t]he Palantir Gotham Platform is a Data
Management Platform that is licensed to customers on a commercial item basis,” and that
other “[g]overnment agencies have procured the Palantir Gotham Platform and related
services on a commercial item basis.” As further detailed below, in responses to the
government’s Requests for Information, Palantir explained that “[i]n cooperation with the
government, Palantir fields and manages 25 Palantir deployments at every major Marine
Corps command, representing over 15,000 accounts at peak usage across the Marine
Intelligence community.” Palantir also claims that “Palantir is currently in use by tens of
thousands of users across the DOD [Department of Defense] and IC [intelligence
community].” The Administrative Record filed in the above captioned protest includes a
February 9, 2015 “Operational Needs Statement for Palantir Platform” from [redacted]
requesting the Palantir Gotham Platform. The Statement indicated: “The Palantir
Command platform is a proven capability that is currently in use to provide COP, data
integration, and staff integration capabilities across multiple commercial and government
organizations,” and concluded that “Palantir Technologies, Inc. offers a solution that
meets all of our requirements and has fielded the same platform across multiple units
[redacted], as well as various U.S. Government agencies. [redacted].”

Pre-Solicitation Activity

The parties have stipulated that in July 2014, prior to the issuance of the DCGS-A
Increment 2 solicitation, the Army Acquisition Executive, Heidi Shyu,5 chartered a Data
Integration, Visualization and Analytics (DIVA) Independent Market Study which was
completed by the MITRE Corporation, a not-for-profit research and development
organization. The joint stipulations of fact indicate:

The purpose of the DIVA study was to “provide situational awareness and
market trends to the Army leadership of the ‘state-of-the-practice’ within the
commercial DIVA software platform landscape.” As stated in the DIVA

5 Ms. Shyu is referred to by several different titles throughout the Administrative Record
and filings with the court. The joint stipulations of fact indicate that when Ms. Shyu
chartered the DIVA Market Study in July 2014 and when she signed the October 21, 2015
Determination & Finding, her title was the Army Acquisition Executive. On October 20,
2014, when Ms. Shyu issued a “Recommendation for a Change to the Distributed
Common Ground System-Army (DCGS-A) Increment 1 Acquisition Strategy,” her title was
“Assistant Secretary of the Army (Acquisition, Logistics and Technology).” The joint
stipulations of fact also indicate when she issued the December 16, 2015
recommendation for issuance of the solicitation, her title was listed as Assistant Secretary
of Defense (Acquisition).
5
study, the DIVA study was intended to: (1) provide a high-level overview of
the ASA(ALT) Data Integration, Visualization and Analytics (DIVA)
Independent Market Study; and (2) provide recommendations for the
DCGS-A Increment 2 Acquisition effort and describe the top- level risks and
mitigation strategies associated with adopting recommendations. The DIVA
study assessed the following acquisition approaches:

a. Cloud Infrastructure Platform Provider: Provide highly-scalable and
reliable computing infrastructure services (e.g., data bases; analytic
engines; computing and storage; identity management);

b. Turn-Key: Procure a commercial product as basis of DCGS-A Increment
2 infrastructure. Integrate additional applications onto this infrastructure,

c. Hybrid approach: both an Enterprise Cloud Platform and a Turn-Key
Platform, including integration of additional applications. . . .

(all internal citations omitted). The DIVA Market Study included a “Potential Strategy:
Phased Acquisition and Integration Approach,” which recommended that the DCGS-A
Increment 2 approach

could be structured in a phased manner. Initially, the two foundation
components (e.g., COTS[6] cloud infrastructure services and COTS DIVA
“Turn Key” Platform) could be procured. Establish an integration effort to:
integrate the COTS DIVA “Turn Key” platform with the COTS cloud
infrastructure services; and integrate the DCGS-A Enterprise data
management architecture. This would establish a baseline DCGS-A
Increment #2 baseline – a core suite of applications and analytics functions;
a new Data Management Architecture.

(emphasis removed). The DIVA Market Study explained that “[a] key advantage of
leveraging COTS cloud infrastructure services and a COTS DIVA platform is that doing
so provides a significant amount of technical infrastructure and end-user capabilities.”
(emphasis in original).

On January 7, 2015, also before the solicitation was issued, the Army generated
an Information Paper, which identified key objectives and approaches to DCGS-A
Increment 2. The “Increment 2 Key Objectives” listed were: “1. Modernize the Data
Enterprise to a Data Integration Platform[,] 2. Easier to use visualization framework[,] 3.
Best Leverage industry to deliver these capabilities with a commercially supported

6 COTS, although not defined in the DIVA Market Study, appears to be an abbreviation
for “commercial off the shelf.” Palantir refers to “COTS” in the DIVA Market Study as
commercial off the shelf, without objection from defendant. Furthermore, the Trade Space
Analysis, discussed below, includes a list of acronyms and defines COTS as “Commercial
off the shelf.”

6
infrastructure[,] 4. Execute in a funding constrained environment.” The Information Paper
envisioned a “Three-Phase Approach (DIVA Competition, Domain-specific Capabilities
Updates, Integration Environment).” For the first phase, the DIVA Competition, the
Information Paper stated:

Industry to deliver the infrastructure for document / entity information to
ingest, process, and organize all of the textual data available to DCGS-A to
displace the Entity (TED) and Document (MSG) - infrastructure that
interoperates with the Geospatial and other Intelligence data-specific data
sources using standards such as Open Geospatial Consortium (OGC),
Motion Imagery Standards Profile (MISP), etc. This infrastructure could be
a commercial stand-alone solution (Palantir, IBM) or it could be a collection
of capabilities (RDMS + Hadoop +…) as long as the infrastructure has the
‘ilities’, an open architecture, and the ability to organize the data and mature
touch-points to the data.

(emphasis added).

Although conducted later in time, in July 2015, after the Army issued all three of
the Requests for Information, described below, and around the time the Army issued the
Market Research Report, the Army Materiel Systems Analysis Activity produced a Trade
Space Analysis, which evaluated capabilities that could be leveraged for the DCGS-A
Increment 2 procurement. Defendant explained that: “The TSA [Trade Space Analysis],
dated July 2015, identified and evaluated technical functionality, cost, ease of
use/usability, schedule risk, technical risk, and trade space for specific DCGS-A technical
and operational capabilities that are beyond DCGS-A Increment 1.” The Army Materiel
Systems Analysis Activity explained:

The U.S. Army Materiel Systems Analysis Activity (AMSAA) was directed
by Headquarters, Department of the Army Deputy Chief of Staff (HQDA
DCS) G-3/5/7 to conduct a Trade Space Analysis (TSA) of the DCGS-A
Information System Capability Development Document (IS CDD) to support
future requirements decisions. The TSA identified and evaluated technical
functionality, cost, ease of use/usability, schedule risk, technical risk, and
trade space for specific DCGS-A technical and operational capabilities that
are beyond DCGS-A Increment 1. The TSA results will inform the economic
analysis and Request for Proposal (RFP), supporting a potential Milestone
B acquisition decision for DCGS-A Increment 2. DCGS-A Increment 2 will
provide additional capabilities to enhance the Intelligence processing and
Fusion capabilities across intelligence domains to assist the operational
commander’s access to information, task organic sensors, and synchronize
non-organic sensor assets with their organic assets. The TSA focused on
targeted DCGS-A IS CDD capabilities that are beyond those provided by
DCGS-A Increment 1 for: Mission Command Support for the Processing,
Exploitation, and Dissemination (PED) of Intelligence, Surveillance, and
Reconnaissance (ISR); Standard Sharable Geospatial Framework (SSGF)-

7
Army Geospatial Enterprise (AGE); Data Enterprise Architecture (DEA);
and Intelligence Support to Cyber Operations (CO).

The Trade Space Analysis further explained:

Representative systems were assessed to reflect capabilities that are
readily available for the following software option alternatives: Commercial
off the shelf (COTS), Government off the shelf (GOTS), and Hybrid and are
defined as follows:

• COTS - a singular software solution or compilation of commercially
available software packages that provide an integrated solution, whereby
the vendor owns the rights to the baseline software code.
• GOTS - a singular or compilation of software solutions, whereby the
baseline software code was developed by and owned by the Government.

• Hybrid - a compilation of commercially available software packages
augmented with integrated tools/widgets written by a third-party using
requirements/specifications generated by the Government (i.e.,
combination of COTS and GOTS).

The Trade Space Analysis determined that: “Overall, the Hybrid alternative was
rated Green and scored the highest of the three alternatives. Hybrid software option
alternatives are currently functioning in the DoD IC and will only require minor
development to fill capability gaps. Upper bound COTS software solutions provide similar
‘turn-key’ technical functionality as Hybrid software solutions.”7 Specifically, regarding the
Data Enterprise Architecture results, the Trade Space Analysis stated: “The COTS and
Hybrid alternatives satisfy most of the technical functionality metrics, however, the Hybrid
software solutions are currently functional in the DoD IC and provide the best ‘turn-key’
functionality. Upper bound COTS solutions provide a turn-key technical functionality
similar to that of the Hybrid solutions.” For another capability, the Standard Sharable
Geospatial Framework (SSGF)-Army Geospatial Enterprise compatibility, the Trade
Space Analysis determined:

7 The “Technical Risk Categorical Rating Criteria” in the Trade Space Analysis was:

- Green: “Low Risk of alternative experiencing significant negative
impacts to program cost, schedule, or performance”

- Yellow: “Moderate Risk of alternative experiencing significant
negative impacts to program cost, schedule, or performance”

- Red: “High Risk of alternative experiencing significant negative
impacts to program cost, schedule, or performance”

8
Although there are some GOTS solutions that can address a few targeted
technical functionality metrics, there are no viable comprehensive GOTS
solutions that were identified by the Army/DOD geospatial community. The
COTS alternative was assessed to have greater usability, lower cost, and
lower schedule risk as compared to the Hybrid alternative. The COTS
options won’t address all Army Geospatial requirements with software “out
of the box”. However, these capability gaps are anticipated to be closed with
ongoing commercial upgrades and widgets that can be developed in the
COTS Baseline software. There were several risk driver [sic] for both the
COTS and Hybrid alternatives that were assessed to be of moderate to high
risk.

On August 13, 2014, the Army issued the first Request for Information, which was
“conducted to assess the level of relevant competition and capabilities in the market place
and elicit industry feedback to assist the Program Office in developing the Acquisition
Plan,” for the potential DCGS-A Increment 2 procurement and “request[ed] respondents’
corporate overview information and basic qualifications in managing software
development projects that are similar in scope and process to the DCGS-A program.”8
(emphasis added). The August 13, 2014 Request for Information indicated that the
“[p]roposed contract types under consideration for this effort are cost-plus-incentive-fee
(CPIF) or cost-plus-fixed-fee (CPFF), with an estimated value of $80-$100M for
development efforts over three to four years.”9 (emphasis added). Palantir responded to
the August 13, 2014 Request for Information and stated:

The acquisition cycle should fully leverage existing commercial solutions.
Prioritizing the rapid procurement of commercial capabilities minimizes the
anticipated scope of development needed to deliver Increment 2
capabilities. Narrowing the development scope requires expanding the use
of commercially available COTS capabilities—it does not require narrowing
the overall scope of the DCGS-A program. The Government does not need
to build Increment 2 functionality; the Government can buy the core
functionality from the commercial market and integrate any number of
additional applications.

(emphasis in original; footnote omitted). Palantir explained “we recommend the
Government pursue a different acquisition strategy than the strategy behind the
Increment 1 challenges.” In its response to the August 13, 2014 Request for Information,
Palantir argued that:

8 Palantir states that the August 13, 2014 Request for Information “failed to inquire about
the availability of commercial or nondevelopmental items that could meet the
requirements of DCGS-A2.”
9 Palantir believes this statement demonstrates that “[t]he Army conceded in the first RFI
[the August 13, 2014 Request for Information] that it was not even contemplating the
possibility of a fixed-price contract for the procurement of commercial items.”

9
The most cost-effective and lowest-risk procurement approach is the
acquisition of an open architecture data fusion platform through open
competition for an existing software solution at a Firm-Fixed Price (FFP).
FFP vehicles shift performance risk to the contractor, reduce the risk of cost
overruns to the Government, and shorten delivery schedules.

The parties have stipulated that “Palantir USG recommended among other things a Firm-
Fixed Price (FFP) model in conjunction with ‘an outcomes-based Performance Work
Statement based on a proven product and incorporating support services,’” and, further,
“Palantir USG stated that ‘the FFP model can be used in conjunction with a Cost-Plus
model for optional system enhancements. CPIF and CPFF contracts should total less
than 20 percent of the total contract value.’” Palantir indicated:

Examples of successful FFP contracts include our work at the U.S. Marines
Corps, where enhancements are included as part of our regular software
releases and small businesses fulfill highly custom development requests
by building the top of the foundation layer. Likewise, U.S. Immigration and
Customs Enforcement continues to expand Palantir capabilities through a
FFP contract that includes regular software updates and custom
enhancements requiring less than a set number of development hours.
More recently, following open competition, we were awarded a BPA for the
IC ITE expansion at DIA [Defense Intelligence Agency] available to all IC
agencies and affording a COTS solution at a FFP.

After receiving the responses to the first Request for Information, the Army
produced a December 2014 RFI Response Analysis which indicated that the “[v]ast
majority of respondents support hiring a contractor as the LSI [Lead Systems Integrator]
due to efficiencies in industry decision making and resource-marshaling processes.” The
2014 RFI Response Analysis summarized Palantir’s submission by noting that:

The Palantir response listed several contracts they have been awarded, but
did not include scope or description of work. However, Palantir has
developed an intelligence fusion system that has been used by various
entities within the Department of Defense. Palantir was found capable to
provide Data management and Workflow Management upgrades, and
partially capable of providing Data Fusion and Cyber capabilities to
Increment 2.

The conclusion of the 2014 RFI Response Analysis stated: “Based on the responses to
the first RFI, and analysis of the resulting information conducted by the DCGS-A
Increment 2 Contract IPT [Solicitation Integrated Product Team], the overall conclusion
of this Market Research Report is that a more capability focused RFI needs to be issued
to industry.”

10
Prior to the issuance of the 2014 RFI Response Analysis, on October 20, 2014,
Ms. Shyu, Assistant Secretary of the Army (Acquisition, Logistics and Technology), issued
a memorandum to the Under Secretary of Defense (Acquisition, Logistics and
Technology) regarding a “Recommendation for a Change to the Distributed Common
Ground System-Army (DCGS-A) Increment 1 Acquisition Strategy.” In the memorandum
she requested approval to “[e]nd the Increment 1 program at Release 2, remove Release
3 from the program plan, and allocate the remaining Research, Development, Test and
Evaluation (RDT&E) funds to . . . Initiate Increment 2 preparatory activities.” Ms. Shyu
explained that:

I believe allocating the remaining Increment 1 RDT&E funding to support
potential required fixes from the Increment 1 Release 2 Limited User Test
results and moving forward with Increment 2 efforts as soon as possible will
provide a higher return on investment on the limited RDT&E funds currently
available. In addition, Increment 1 Release 2 will deliver approximately 90
percent of the planned Increment 1 capability.

On December 5, 2014, the Army issued a second Request for Information, which
“[w]as issued to determine ability of individual companies to act as the prime contractor
for the DCGS-A development effort.” As in the August 13, 2014 Request for Information,
“this RFI requests respondents’ specific answers regarding the basic qualifications in
managing software development projects that are similar in scope and process to the
DCGS-A program.” (emphasis added). For the December 5, 2014 Request for
Information, the Army sought “information regarding your corporate capabilities and
experience related to the delivery of capabilities.” Question 3.0(d) of the December 5,
2014 Request for Information asked: “Within the last three (3) years, from the table below,
please indicate which domains that your company has experience developing and
integrating with these types of software applications/capabilities.” (emphasis added). A
copy of the table referenced in Question 3.0(d) is included below:
Software Government Agency or % of Work Period of Prime Contract If you have no
Solutions or POC for this Gov’t Performed Performance or Number experience
Services work (email/ Customer Sub / Value have you
Delivered: phone No.) partnered with
anyone with
experience
(Company
Cloud Name)?
Computing
Big Data
Analytics
Data
Architecture &
Management
Data Fusion &
Pattern Analysis

11
Applications for
IC ITE Joint
Storefront
Targeting
Signals
Intelligence/NS
A-Net
Operations
Defensive Cyber
Operations
Offensive Cyber
Operations
Counter
Intelligence &
Human
Intelligence
DCGS
Integration
Backbone (DIB)
implementation
Weather
Effects/Analysis
GEOINT (Full
Motion
Video/Static
Imagery
Intelligence)
Geospatial
Intelligence
(Terrain &
Mapping)
Collection
Management
(Sensor
Management)
On-the-Move
Operations
Workflow
Management
Role/Attribute
Base Access
Control
Protection level
3 (PL 3) security
hardening
Ease of Use
Initiatives
High/Ultra
Reliability
Program

12
Army
Interoperability
Certification
Joint
Interoperability
Certification

Question 3.0(f) asked: “Does your company have an adequate DCAA accounting
system? If not, can your company obtain an adequate DCAA accounting system prior to
proposal submission?” Question 3.0(h) asked, “[w]hat is your company’s current rate of
personnel retention over the last five (5) years?”

Palantir again responded10 to try to explain the value of a commercial, not a
developmental, approach:

We continue to believe that the success of Increment 2 requires a proven
commercial solution to ensure the delivery of a working capability on time
and within budget. We are concerned that the present RFI, DCGS-
A_INC2_RFI2, is focused on collecting information on each respondent’s
capability to conduct a services-based, large-scale, and custom software
engineering effort. Several questions are designed to assess vendor
experience with major software development projects, rather than to assess
existing software capabilities applicable to Increment 1 capability gaps.

Palantir recommended “that the Government pursue a different acquisition strategy than
the long-term development used in Increment 1. We believe the acquisition of an open
architecture, COTS-based platform at a Firm-Fixed Price (FFP) offers the most cost-
effective and lowest-risk procurement approach for Increment 2 capabilities.” Palantir
emphasized:

Our commercially developed data integration and analytic platform is
designed for use in a variety of use cases and domains across our
commercial and government clients. We have provided our solution in
support of many of the domains listed under “Software Solutions or Services
Delivered” for our deployments with Army, DoD and the IC. However, the

10 As discussed below, defendant argues that, although “Palantir USG responded to RFI
No.2,” Palantir did not “complete the Army’s chart and identify its specific capabilities
across the various DCGS-A.” Defendant states that Palantir “declined to answer question
3.0(d) in RFI No.2,” and “question 3.0(f) in RFI No.2,” and “question 3.0(h) in Request for
Information No.2.” Palantir responds that the Army did not in fact request that bidders
“complete the Army’s chart and identify its specific capabilities across the various DCGS-
A,” “[r]ather, it asked prospective bidders for which ‘Agency or Gov’t Customer’—including
procurement ‘contract number’—they had certain experience within ‘the last three (3)
years.’ Palantir had already provided the Army with information about its prior
Government contracts. There was no reason to do so again.” (emphasis in original;
internal citations omitted).
13
request for information on software series contracts performed across USG
is not relevant to an acquisition strategy targeting a COTS-based solution.
If the Government has questions on how our platform functionally fulfills the
specific domains, we would be happy to provide demonstrations or arrange
a discussion.

After the responses to the second Request for Information were received, on
January 20, 2015, the Army held an “Industry Day,” characterized by the Army as a “forum
to share emerging requirements with Industry,” which “helped to ensure the Government’s
requirements are defined adequately to promote high quality proposals and adequate
competition.” Between January 20, 2015 and May 12, 2015, the “Government conducted
a one on one engagements [sic] with 78 different organizations,”11 which the Army stated
was an opportunity to “[p]rovide a forum to answer Industry’s questions and elicit their
feedback regarding to [sic] the elements of the Increment 2 Acquisition Strategy and
Acquisition Plan such as small business involvement and Data Management
considerations.”

On May 6, 2015, the Army issued a third Request for Information, which “[w]as
released to determine if [the] rule of two exists, as defined in FAR [Federal Acquisition
Register] 19.502, and if a small business set-aside is appropriate for Increment 2
development.” Palantir indicated that it was not a small business and, as with the previous
Requests for Information, responded:

The initial decision to embark on a significant software development effort,
rather than acquiring a COTS solution, resulted in many of the DCGS-A
Increment 1 challenges. We are concerned that several of the RFI questions
indicate that the Government is considering contract terms and vehicles that
would perpetuate risky long-term, services-based contracts that focus on
large software development activities.

Palantir also indicated in its response:12

11The joint stipulations of fact reflect that the Army conducted “[o]ver 80 one-on-one
sessions with the Program Manager and industry.” Neither the joint stipulations of fact nor
any document in the Administrative Record establish whether or not any of the more than
80 meetings included Palantir.
12In responding to the question in the May 6, 2015 Request for Information, “[e]xplain
how your company would be able to operate without payment for up to 90 days if awarded
a Prime Contract for Increment Two Development,” Palantir indicated:

As a privately owned company, Palantir Technologies, the parent company
of Palantir USG, Inc., does not typically release financial information. We
will provide audited statements as reasonably necessary for the purposes
of determining our ability to perform our obligations under the agreement
subject to the appropriate confidentiality provisions being put in place.

14
Data integration requirements are not unique to the Army. The Army can
acquire an enterprise-wide data platform now, without development risk or
cost, and focus custom development efforts on unique needs across the
Force. The successful delivery of Increment 2 depends on the answer to a
central question: will the Army acquire a data platform from the commercial
market or will it attempt to build one itself?[13]

As noted above, Palantir explained that “[i]n cooperation with the government, Palantir
fields and manages 25 Palantir deployments at every major Marine Corps command,
representing over 15,000 accounts at peak usage across the Marine Intelligence
community.”

After a second Industry Day, held on June 25, 2015, which the Army characterized
as “an opportunity to discuss the draft Increment 2 requirements with industry,” in July
2015, the Army issued a Market Research Report, which determined that “the DCGS-A
Increment 2 development effort cannot be procured as a commercial product.”14 The
Market Research Report stated that “[s]ignificant portions of the anticipated Increment 2
scope of work such as Data Fusion, Intelligence Support to Cyber, and DIB [Integrated
Backbone] upgrade are not available as a commercial product. As such, the DCGS-A
Increment 2 development effort cannot be procured as a commercial product.”15
Addressing Palantir specifically, the Market Research Report16 stated in the “RFI
Respondent Capability Assessment” that “[t]he Palantir response did not provide any
examples of past experience relevant to the development of Increment 2, and was
therefore found non-responsive.” (emphasis removed). The parties have stipulated that:

A November 6, 2015 paper to the Chief of Staff of the Army stated that
“Extensive market research efforts were conducted to ensure requirements

13In the complaint, protestors allege that “[f]or over 15 years, the Army has spent
approximately $6 billion trying to develop its own software solutions for DCGS through
developmental service contracts with myriad defense contractors.”
14 A chart included in the Market Research Report briefly summarized the role of each of
the Requests for Information. The Market Research Report indicated: “RFI 1 To
determine level of competition and industry feedback of Acquisition Strategy[,] RFI 2 To
determine capability of individual businesses to perform as prime contractor[,] RFI 3
Inform Increment 2 on the role of small business[.]” (emphasis in original).
15The Market Research Report also indicated that in September 2015, the Army would
have an “Industry Engagement,” which would be to “serve as a venue to discuss the Draft
Increment 2 Request for Proposal (RFP) with industry following its release.”
16 Of the 43 respondents to the December 5, 2014 Request for Information, the only
responder to the December 5, 2014 Request for Information the Market Research Report
labeled as “non-responsive” was Palantir.

15
were achievable” and then listed “4-month independent DIVA study lead
[sic] by MITRE, SEI, DNI, and DAU,” “3 Requests for Information,” “2
industry days with over 500 attendees and 224 companies,” and “Over 80
one-on-one sessions with the Program Manager and industry.”

Even after responding to the three Requests for Information, Palantir continued to
try to express to the Army its views and frustration with the direction of the developmental
procurement choice by the Army and with the Army’s apparent disinterest in consideration
of commercially available alternatives. In response to the draft Performance Work
Statement, Palantir indicated:

Palantir USG, Inc. . . . has reviewed the Performance Work Statement
(PWS) for DCGS-A Increment 2 Task Order 0001. As written, Task Order
0001 prevents companies with commercially available technology from
direct participation in the program and will result in failure. Task Order 0001
will lock the Army into an irrelevant and unusable “flagship” intelligence
architecture for the next decade. Increment 1 failed because the Army
attempted to build a foundational data platform from scratch while refusing
to adopt proven commercial technology for core system components. After
spending fifteen years and billions of dollars, the Army has not delivered a
working intelligence platform to soldiers. Army ASA(ALT) acknowledged
this reality and directed DCGS-A’s leadership to halt Increment 1 and adopt
a new strategy for Increment 2. Despite this direction, and in direct violation
of Congressional intent, the Army has deliberately chosen to repeat the
same strategy that resulted in the failure of Increment 1 and is once again
ignoring commercially available technology that works for soldiers today.
Increment 2 is an opportunity to correct this failure, but only if the Army
changes its fundamental acquisition strategy. This is a consequential
moment for the DCGS-A program. There is little time remaining to change
the strategy, and current program leadership appears unwilling to take
necessary action.

(internal reference omitted).

On October 21, 2015, Ms. Shyu, as the Army Acquisition Executive, signed a
Determination & Findings for “Award of a Single Source Indefinite-Delivery Indefinite-
Quantity (IDIQ) Single Award Contract Exceeding $103M for Distributed Common Ground
System (DCGS)-Army Increment 2, Engineering Manufacturing and Development IAW
DFARS 216.504(c)(1)(ii)(D)(i).” The Determination & Findings noted that “DCGS-A
Increment 2 is heavily focused on design and development of a new data management
architecture by a contractor as the systems integrator,” and “[d]evelopment of the data
integration layer is pivotal and complicated by multiple interfaces and interoperability
requirements with external intelligence systems.” The Determination & Findings
concluded that:

16
Based on the above analysis, issuing a single award IDIQ contract will
mitigate many of the risks identified herein and is in the best interest of the
Government. Due to the complex developmental efforts this work entails,
further competition at the task order level would interrupt development,
ultimately increase price, and cause schedule slippages.

Ms. Shyu determined:

that a single-source task or delivery order contract estimated to exceed
$103 million for Distributed Common Ground System [DCGS]-Army
Increment 2, Engineering Manufacturing and Development contract is
authorized because the task or delivery orders expected under the contract
are so integrally related that only a single source can reasonably perform
the work.

Finally, on July 1, 2016, notably one day after the above captioned protest was
filed in this court, and significantly after the issuance of the solicitation and the conclusion
of the GAO protest, Christopher Fisher, the contracting officer for the solicitation at issue
and Bryon Young, the Principal Assistant Responsible for Contracting, issued a
“DETERMINATION OF NON-COMMERCIAL ITEM.” (capitalization in original; emphasis
removed). The Determination of Non-Commercial Item stated that market research was
conducted and the three “RFIs were to canvas the market and determine the availability
of commercial/non-developmental items/services available for satisfying the DCGS-A’s
Increment 2 requirements.” The Determination of Non-Commercial Item stated:

Based upon market research conducted by the Program Manager (PM)
DCGS-A, I find that some commercial software applications exist that could
potentially satisfy portions of the DCGS-A Increment 2 requirement. The
market research showed that significant portions of the scope of work, such
as, the military unique capabilities classified up to the Top Secret level
needed to meet the requirements associated with Signals Intelligence
(SIGINT), Human Intelligence (HUMINT), Military Weather, Interoperability,
Data Fusion, Intelligence Support to Cyber, and DCGS Integrated
Backbone (DIB) upgrade are not available as commercial items.

The Determination of Non-Commercial Item concluded:

I find, based upon the requirements of this procurement and the market
research performed, that this requirement is not appropriate as a
commercial item procurement because no single commercial item of a type
customarily used by the general public or one that can meet the
Government’s requirement through minor modification is available; nor is
there a combination of commercial items that can satisfy the DCGS-A
Increment 2 requirement.

17
The Solicitation, GAO Protest, and Filing in this Court

On December 16, 2015, the Army issued a recommendation for issuance of the
solicitation, in which Ms. Shyu, as the Assistant Secretary of Defense (Acquisition), stated
that DCGS-A Increment 1 was “fully operational,” but its “data architecture is over 10
years old and is based upon technology that is nearing obsolescence, with no growth
margin.” Ms. Shyu continued: “Increment 2 will provide a new Data Management
Architecture, a new Workflow Management capability, improved fusion and pattern
analysis, cyber security upgrades, upgrades to the DCGS Integrated Backbone and
usability enhancements.” After Ms. Shyu’s recommendation for issuance of the
solicitation, on December 23, 2015, the Army issued the solicitation at issue in this protest,
Request for Proposals No. W56KGY-16-R-0001, for engineering, manufacturing, and
development services. The solicitation required a single contractor to be the system data
architect, developer, and integrator for DCGS-A Increment 2. The solicitation had four
evaluation factors: (1) Technical; (2) Cost/Price, (3) Past Performance, and (4) Small
Business Participation Plan. The solicitation contemplated the award, on a best value
basis, of a single indefinite-delivery, indefinite-quantity contract, with the simultaneous
issuance of a cost-reimbursement type task order and the period of performance
contemplated a six year term from contract award.

The closing date for the solicitation was February 16, 2016. That same day,
February 16, 2016, Palantir filed a timely protest at the GAO. The GAO subsequently
issued its decision on May 18, 2016, denying the protest. See generally Palantir USG,
Inc., 2016 WL 3035029. In a short decision, the GAO indicated that “[w]hile the market
research revealed that commercial items were available to meet some of the DCGS–A2
requirements, the agency concluded that there was no commercial solution that could
meet all the requirements of DCGS–A2,” and “[b]ecause the agency concluded that
significant portions of the anticipated DCSG–A2 [sic] scope of work were not available as
a commercial product, the agency determined that the DCGS–A2 development effort
could not be procured as a commercial product under FAR part 12 procedures.”
According to the GAO, “[t]he protester has failed to show that the agency's determination
in this regard was unreasonable.” Id. at *3 (footnote omitted). The GAO also determined
“the record shows that the agency reasonably decided on its approach of having a single
contractor, who would be responsible for selecting all the components of DCGS–A2, and
who would bear the responsibility for making certain that those components are
integrated, in contrast to the phased approach favored by Palantir.” Id. at *4. The GAO
concluded:

[T]he agency’s approach is reasonably related to its need for a fully
integrated and interoperable system made up of a number of specific
capabilities, some of which are commercially available and some of which
are not. While the agency considered several potential approaches to this
procurement, including the phased approach favored by the protester, the
agency ultimately concluded that it would have a greater likelihood of
success (in that it could avoid certain technical risks, concerns and
significant schedule risk and cost uncertainty) by opting to have a single

18
contractor serve as the system integrator in charge of developing and
selecting the components and making sure that they can be successfully
integrated. As such, we have no reason to question the approach chosen
by the agency or to conclude that the solicitation is unduly restrictive of
competition.

Id. at *5 (internal citation omitted).

On June 30, 2016, Palantir USG, Inc. and Palantir Technologies Inc. filed the
current pre-award bid protest in this court. The complaint has seven counts. Count one
alleges that the Army violated 10 U.S.C. § 2377 (2012) and 48 C.F.R. § 10.002 (2016)
and 48 C.F.R. § 11.002 (2016) by refusing to solicit the data management platform as a
commercial item. Similarly, count two alleges that the Army violated 10 U.S.C. § 2377
and 48 C.F.R. §§ 10.002 and 11.002 by refusing to solicit a commercial item for the
entirety of DCGS-A Increment 2. Count three alleges that the Army violated 10 U.S.C.
§ 2377(c) by failing to determine whether its needs could be met by commercial items.
Count four contends that the Army violated 48 C.F.R. § 16.301-2(a) (2016) by soliciting a
cost-plus contract instead of a fixed price contract, and states:

Given the Army’s experience of 15 years with DCGS-A1, and given the
existence of commercial items for which pricing information is available, the
Army cannot credibly claim that it is unable ‘to define its requirements
sufficiently to allow for a fixed-price contract’ or that it is not possible for
“costs to be estimated sufficient with accuracy to use any type of fixed-price
contract.”

Count five alleges that the Army violated 10 U.S.C. § 2304a(f) (2012) and DFARS Part
217.204 (2016) by soliciting a task order contract with a base period of six years. Count
six alleges that the Army violated 48 C.F.R. § 16.504 (2016) by soliciting an impermissibly
expensive task order exceeding $112.0 million. Finally, count seven alleges that “the
Army engaged in arbitrary, capricious, and unlawful conduct by refusing to allow Palantir
to bid, by resisting innovation, by insisting on the failed approach of DCGS-A1, and by
engaging in bad faith conduct[.]” (emphasis and capitalization removed).

The complaint alleges that:

[T]he Army’s conduct is fundamentally irrational, arbitrary, and capricious
because it insists upon constructing a Solicitation for DCGS-A2 that repeats
all the failures of DCGS-A1. It insists on a cost-plus development effort even
though that effort was a complete failure for DCGS-A2 [sic]. It insists on
larding up its list of requirements with meaningless or redundant work
streams that are nothing more than an incentive for the defense contractors
involved to make money, and will have little to no operational utility. It insists
on requiring DCGS-A2 to have interoperability with antiquated systems
created over a decade ago, and that are now obsolete. It is possible for
Palantir to do all these things, but it is irrational and costly for the Army to

19
insist upon them. Requiring the contractors to perform such useless tasks
is arbitrary and capricious.

The complaint asks this court to enter

a permanent injunction requiring the Army to rescind its Solicitation and to
take any and all necessary corrective action needed to remedy its legal
violations, including at a minimum through the issuance of a revised
solicitation that complies with the Army’s legal obligations to define its
requirements in such a manner that solicits bids from offerors who will
provide commercial items or nondevelopmental items to meet the Army’s
requirements.

Initially, in response to the complaint, defendant filed a motion to dismiss Palantir
USG, Inc. and Palantir Technologies Inc.’s complaint and argued that Palantir USG, Inc.
and Palantir Technologies Inc. lacked standing to bring this protest and that even if
Palantir USG, Inc. and Palantir Technologies Inc. had standing, they had waived any
objections to the solicitation. After the parties fully briefed the motion to dismiss, the court
determined that the timely protest filed at the GAO did not cause Palantir USG, Inc.’s
claims to become subject to waiver in this court, and, that Palantir had standing to bring
its claims in this court. See Palantir Techs., Inc., et al. v. United States, 128 Fed. Cl. 21,
46 (2016). The court determined, however, that Palantir Technologies Inc. had not filed a
timely protest with the GAO, and, therefore, its claims were subject to waiver, and granted
defendant’s motion to dismiss Palantir Technologies Inc. for lack of subject matter
jurisdiction.

In addition to defendant’s motion to dismiss, the parties now have filed cross-
motions for judgment on the Administrative Record. In response to the allegations in the
complaint, the defendant generally responds that agencies have “substantial discretion”
both to determine the requirements and how best to acquire those requirements.
Defendant also argues that the Army’s market research, and the determination based on
the market research, were appropriate and that the documents in the Administrative
Record do not support Palantir’s argument that the Army erred in not soliciting the DCGS-
A Increment 2, including the data management platform, as a commercial item. Finally,
defendant argues that there is no evidence of bias and/or bad faith by the Army towards
Palantir.

Supplementation to the Administrative Record

After Palantir filed its complaint and moved for judgment on the Administrative
Record, on July 15, 2016, Palantir moved to supplement the existing Administrative
Record in order to support Palantir’s allegations regarding bias and/or bad faith, as well
as regarding the Army’s failure to comply with 10 U.S.C. § 2377. Palantir sought to
supplement the Administrative Record with discovery, including depositions,
interrogatories, and document production requests. In its motion to supplement the
Administrative Record, Palantir argued that the Administrative Record filed by defendant
was “deficient in a number of respects.” Palantir argued that the Administrative Record
20
did “not include documents that the Army must have, or at a minimum should have,
considered when it prepared the Solicitation;” “omits documents that were ‘close at hand’
and highly relevant to the Solicitation;” “omits documents demonstrating that the Army’s
DCGS Program Owners made inaccurate assertions or assumptions about the Palantir
Gotham Platform;” and “omits documents demonstrating the bias and bad faith conduct
alleged by Palantir in its Complaint.” Palantir argued that supplementation of the
Administrative Record was necessary to conduct effective judicial review of the Army’s
decision-making process. Specifically regarding Palantir’s bias and/or bad faith
allegations, Palantir asserted that the “currently assembled Administrative Record is
inadequate to assess” bias and/or bad faith. In arguing that supplementation to the
Administrative Record was justified to effectively review Palantir’s bias and/or bad faith
allegations, Palantir pointed to past alleged efforts of “certain Army personnel to delete
and suppress favorable evaluations of the Palantir Gotham Platform, resist the
deployment of commercial items to Soldiers in the field, and disseminate inaccurate
information about Palantir’s technology.”

Palantir attached 53 exhibits with which it sought to supplement the Administrative
Record. Of the 53 exhibits, Palantir identified 43 exhibits that were relevant to Palantir’s
allegations that the Army failed to comply with 10 U.S.C. § 2377. According to Palantir,
with these 43 exhibits, Palantir was “seeking to add to the record material that should
have been of central importance to the market research § 2377 required the Army to
conduct, the process § 2377 required the Army to follow, and the determinations and
inquiries § 2377 required the Army to make.”

Palantir specifically identified 12 exhibits17 as “necessary to conduct judicial review
of Palantir’s allegations of bad faith and biased conduct.”18 Palantir moved to supplement
the Administrative Record with materials that allegedly “document the DCGS-A Program
Owners’ years-long efforts to protect their failing program, by resisting an innovative
solution and blocking the deployment of the Palantir Gotham Platform to the field.”

In addition to the exhibits with which Palantir sought to supplement the
Administrative Record, Palantir also requested leave of the court to conduct what it
described as limited discovery, including seven requests for production of documents,
seven interrogatories, and four depositions. Palantir argued that discovery was needed
to resolve the central factual predicate “to the Army’s decision to issue a developmental

17 Palantir indicated that Exhibits 2-7 related to both the allegations that the Army failed
to comply with 10 U.S.C. § 2377 and to the allegations of bias and/or bad faith.
18 Although Palantir’s motion to supplement the Administrative Record originally listed
Exhibits 2-7 and 35-39 as “necessary to conduct judicial review of Palantir’s allegations
of bad faith and biased conduct,” it appears that Palantir also intended to include Exhibit
52 as essential to the court’s consideration of Palantir’s bias and/or bad faith allegations.
Exhibit 52 was not included in Palantir’s motion to supplement the Administrative Record.
Palantir added Exhibit 52 to its reply brief in support of its motion to supplement the
Administrative Record.

21
solicitation rather than to define its requirements so they could be met by a commercial
or nondevelopmental item.” Palantir also asserted that “[t]argeted discovery is needed to
get to the bottom of the bias and bad faith that infected this solicitation process” and that
Palantir had “presented allegations of bad faith and bias that rest on ‘a strong evidentiary
footing,’ and that are more than sufficient to warrant discovery.” Additionally, Palantir
argued that in order “[t]o engage in effective judicial review of Palantir’s ability to offer a
commercial item that satisfies the Army’s requirements, the Court should permit testimony
from individuals who have the expertise needed to translate the technical information in
the Solicitation, the PWS [Performance Work Statement], and related documents into
plain English.” Palantir also sought leave of the court to depose four government
individuals: Contracting Officer Christopher Fisher, Lieutenant General Mary Legere (now
retired), the “Army’s Deputy Chief of Staff for Intelligence (G-2), the Program Owners of
DCGS-A,” Major General Laura Richardson, who “signed the April 25, 2012 ATEC [United
States Army Test and Evaluation Command] report,” and Kevin Kelly, “the author of the
MITRE study.”

Although defendant agreed initially to supplement the Administrative Record with
three of the exhibits Palantir proposed to add, defendant otherwise opposed Palantir’s
motion to supplement the Administrative Record and for discovery. Defendant argued that
Palantir sought to supplement the Administrative Record with “stale” documents and
otherwise substitute its own judgment for that of the agency’s contracting personnel.
Defendant further argued that Palantir “fail[ed] to demonstrate evidence of bias, much
less meet the standard of ‘strong evidentiary footing’ needed to give this Court a basis to
permit supplementation of the administrative record.” According to defendant, Palantir
“attempt[s] to weave a bad faith argument and bias argument into [its] disagreement with
the overall Army policy decision on the type of overarching platform and other
requirements for which it wanted to solicit offers.” Defendant also asserted that Palantir’s
“mere disagreement with the overall agency policy decision does not demonstrate an
individual, must [sic] less an institutional, bias or bad faith.” Defendant also maintained
that Palantir should not be permitted to offer testimony about its technical capabilities
because “this protest is not about the capabilities of [Palantir’s] software product,” and
those capabilities “are irrelevant to this Court’s judicial review of the administrative
record.” Defendant also opposed Palantir’s request to conduct limited discovery through
interrogatories and document requests and to conduct depositions of Contracting Officer
Fisher, Lieutenant General Legere, Major General Richardson, and Kevin Kelly.

In deciding whether or not to supplement the Administrative Record with the
exhibits and to allow any of the additional discovery proposed by the protestor, the court
considered whether the exhibits and discovery were necessary for effective judicial
review. The court recognized that “the parties’ ability to supplement the administrative
record is limited” in a bid protest. Dyncorp Int’l, LLC v. United States, 125 Fed. Cl. 1, 2
(2016). In a bid protest, the court should review the Administrative Record already in
existence to determine whether the agency procurement action at issue was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2) (2012). In Axiom Resource Management, Inc. v. United States, 564 F.3d 1374,
1380 (Fed. Cir. 2009), the United States Court of Appeals for the Federal Circuit held that
supplementation of the Administrative Record, generally, should be limited to cases in

22
which the omission of extra-record evidence would preclude effective judicial review. See
id.; see also L-3 Commc’ns Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 49
(2011). “[T]he administrative record in a bid protest ‘should be supplemented only if the
existing record is insufficient to permit meaningful review consistent with the APA.’” Tech
Sys., Inc. v. United States, 97 Fed. Cl. 262, 265 (2011) (citing Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d at 1381). “[A]lthough the Federal Circuit's holding in Axiom makes
clear that supplementation of the administrative record should occur rarely, it is not
prohibited and may be used when it is necessary for the Court to gain a complete
understanding of the issues before it.” Dyncorp Int’l, LLC v. United States, 125 Fed. Cl.
at 2. “One of the basic reasons a record may be insufficient is when it is missing ‘relevant
information that by its very nature would not be found in an agency record—such as
evidence of bad faith, information relied upon but omitted from the paper record, or the
content of conversations.’” Tech Sys., Inc. v. United States, 97 Fed. Cl. at 265 (citing
Orion Int'l Techs. v. United States, 60 Fed. Cl. 338, 343-44 (2004)).

Specifically concerning Palantir’s motion to supplement the Administrative Record
to support its bias and/or bad faith allegations, the court considered whether Palantir’s
allegations had a sufficiently strong evidentiary foundation to justify supplementation.
“Where bias is alleged, the administrative record frequently will not be complete or suffice
to prove or disprove the allegation.” See Pitney Bowes Gov’t Sols., Inc. v. United States,
93 Fed. Cl. 327, 332 (2010). “This Court and other fora resolving bid protests have
traditionally considered extra-record evidence in assessing alleged bias or bad faith”
because allegations of bias, prejudice and bad faith may “depend upon a Government
official’s past conduct toward a bidder,” which “cannot be subsumed within the record of
a challenged award decision.” Int’l Res. Recovery, Inc. v. United States, 61 Fed. Cl. 38,
41-42 (2004); see also Starry Assocs., Inc. v. United States, 125 Fed. Cl. 613, 621 (2015)
(“Effective judicial review is not possible when the administrative record ‘is missing
“relevant information that by its very nature would not be found in an agency record—
such as evidence of bad faith. . .”’.” (quoting InfoReliance Corp. v. United States, 118 Fed.
Cl. 744, 747 (2014))). However, “allegations of bad faith must be based on hard facts in
order to justify discovery and supplementation of the administrative record.” Int’l Res.
Recovery, Inc. v. United States, 61 Fed. Cl. at 43. “[A]llegations of bad faith must rest on
a strong evidentiary footing to overcome the normal presumption of regularity and good
faith conduct by agency officials.” Orion Int’l Techs., v. United States, 60 Fed Cl. at 344.
“[T]o address bias, the court will entertain extrarecord evidence . . . when there has been
a ‘strong showing of bad faith or improper behavior,’” and the strong showing must have
an evidentiary foundation and “not rest merely on counsel’s argument, suspicion, or
conjecture.” Pitney Bowes Gov’t Sols., Inc. v. United States, 93 Fed. Cl. at 332 (quoting
Ala. Aircraft Indus., Inc. v. United States, 82 Fed. Cl. 757, 766 (2008)); see also Pitney
Bowes Gov’t Sols., Inc. v. United States, 93 Fed. Cl. at 332 (“Essentially what is required
is ‘a threshold showing of either a motivation for the [g]overnment[al] employee to have
acted in bad faith or of conduct that is hard to explain absent bad faith.’” (quoting L–3
Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 356 (2010))). “‘[T]o put
facts relating to bad faith in play’” and supplement the administrative record, allegations
of bias and/or bad faith must be based on “hard facts” and sufficiently well-grounded, and
not merely innuendo or suspicion. See Madison Servs., Inc. v. United States, 92 Fed. Cl.
120, 130 (2010) (quoting Beta Analytics Int’l, Inc. v. United States, 61 Fed. Cl. 223, 226
23
(2004)); see also Pitney Bowes Gov’t Sols., Inc. v. United States, 93 Fed. Cl. at 332; Tech
Sys., Inc. v. United States, 97 Fed. Cl. at 265-66. Additionally, in considering whether
extra-record evidence should be included in an administrative record, the court should
apply the Federal Rules of Evidence to the extra-record materials in order to ensure their
reliability. See L–3 Commc'ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. at 358
(explaining that documents which the agency omitted from the administrative record, but
should have included in the first place, or are agency-generated, should be included for
completeness).

The court held a hearing regarding Palantir’s motion to supplement the
Administrative Record. At the hearing, together with the parties, the court reviewed each
exhibit and discovery request that Palantir proposed for supplementation to the
Administrative Record to determine whether any of the exhibits or discovery requests
were necessary for effective judicial review. Of the 53 exhibits proposed for
supplementation, the parties only were able to agree that three of the exhibits (Exhibits
1, 22, 23 in the motion to supplement the Administrative Record) should be added to the
Administrative Record in this protest. Additionally, at the hearing, Palantir withdrew,
“without prejudice,” eight of the exhibits proposed for supplementation, Exhibits 29-33,
35, 37-38.

After reviewing the Administrative Record, as well as Palantir’s proposed exhibits,
and after careful consideration, the court concluded that some, but not all, of the exhibits
were necessary for effective judicial review, and, thus, supplementation to the
Administrative Record was justified for only certain exhibits. Specifically, the court denied
Palantir’s motion to supplement the Administrative Record regarding proposed Exhibits
2, 7, 8-21, 25-28, 34, 36, 39, and 50-53 because the court found that these exhibits were
not necessary for effective judicial review.19

The court found that Exhibits 3-6, 24, and 40-49 were necessary for effective
judicial review and these exhibits were added to the Administrative Record. Exhibits 3-6
pertained to Palantir’s allegations of bias and/or bad faith. As stated above, “allegations
of bad faith must be based on hard facts in order to justify discovery and supplementation
of the administrative record.” Int’l Res. Recovery, Inc. v. United States, 61 Fed. Cl. at 43.
Thus, the court considered whether Palantir’s bias and/or bad faith allegations were
based on sufficient evidentiary footing to justify discovery and supplementation to the
Administrative Record. The court also concluded that Exhibit 24 was necessary to
effectively review the reasonableness of the Army’s decision to issue a solicitation only
for a developmental contract. Exhibits 40-49 were excerpts of government contracts held
by Palantir that purportedly could demonstrate the potential capabilities of Palantir’s
commercially available product, which protestor argues the agency should have
considered when it made its determination under 10 U.S.C. § 2377. Because the parties
dispute whether or not Palantir has a commercially available product with the capabilities
to satisfy the requirements in the DCGS-A Increment 2 solicitation, and Exhibits 40-49

19In denying Palantir’s motion to supplement the Administrative Record with these
exhibits the court allowed the exhibits to be used in depositions.

24
contain contracts that could illustrate Palantir’s capabilities, the court determined that
these contracts were necessary for effective judicial review. Additionally, as discussed
further below, the court determined that limited supplementation of the Administrative
Record regarding the technical requirements of the DCGS-A Increment 2 solicitation, and
Palantir’s ability to potentially meet those requirements, was justified and the court
permitted the parties each to select one expert to submit an expert report and permitted
the parties to depose each side’s designated expert. Subsequently, defendant proffered
Shaun Cronen, a “Team Lead in the Intelligence Enterprise Branch of the Intelligence and
Systems Processing (ISP) Division of the Intelligence and Information Warfare
Directorate (I2WD) within the Communications-Electronics, Research, Development and
Engineering Center (CERDEC),” as its expert witness, and Palantir proffered Bryant
Choung, Global Defense Engineering Lead for Palantir USG, Inc. and Palantir
Technologies Inc.

Before the court, regarding bias and/or bad faith, Palantir offered a summary of
what it alleged were its “main points providing a ‘strong evidentiary footing’ for Palantir’s
allegations of bad faith,” including:

 The order from the head of the Army’s G-2 unit (the chief DCGS-A
Program Owner) for the destruction of the findings in the April 25, 2012
ATEC report that were favorable to Palantir.

 The Army’s decision to cease funding for another independent
evaluation of the Palantir Gotham Platform by the MITRE Corporation. . . .
That order came after the MITRE Corporation produced an initial slide deck
showing extremely favorable findings regarding Palantir that directly
contradict the inaccurate information the DCGS-A Program Owners were
circulating to senior DOD management and to Congress.

 The fact that, after the MITRE Corporation study with its favorable
findings on Palantir was shut down, the DCGS-A Program Owners created
slide decks and talking points about Palantir that were directly contradicted
by the MITRE Corporation study.

 An email from October 7, 2014, in which Palantir’s Doug Philippone
set forth forty-four bullet points of specific instances spanning more than
two years in which Army personnel associated with the Program Owners of
DCGS-A were engaged in “blocking” requests from the field for Palantir, and
otherwise thwarted and openly expressed their hostile bias against
Palantir.

 The fact that the Army’s supposed “market research” in 2014-15
never took cognizance of the ATEC or MITRE reports, never asked
questions about the information in those reports, never asked questions
about the existence of Palantir’s commercial products, and was all based
on the predetermination that the Solicitation would be crafted as a cost-plus

25
developmental services contract, rather than a fixed-price acquisition of a
commercial or nondevelopmental item.

(emphasis removed). Palantir sought to use Exhibits 3-6 and Exhibit 52 included in
Palantir’s motion to supplement the Administrative Record, as well as Tabs 33, 35, 37,
and 39 of the existing Administrative Record, to demonstrate the above listed allegations.
Exhibits 3-5 contain the April 25, 2012 ATEC report on Palantir’s capabilities, the revised
May 25, 2012 ATEC report on Palantir’s capabilities, and an e-mail directing the April 25,
2012 ATEC report to be rescinded and destroyed. Exhibit 6 is an information brief
regarding Palantir’s capabilities created by the MITRE Corporation. Exhibit 52 is an e-
mail from Palantir’s Douglas Philippone to an Army official recounting numerous alleged
instances of “blocking” events by Army personnel to avoid using Palantir’s technology.

Palantir’s allegation that the Army was biased against it appears to rest, in part, on
the history between Palantir and the Army that occurred prior to the issuance of the
solicitation at issue in this bid protest, including during the time the market research was
conducted. Included in that history are the reports on Palantir’s capabilities by ATEC in
April and May 2012 and the MITRE Corporation that were allegedly shut down or
otherwise influenced by Army personnel who allegedly did not want to publicize favorable
findings regarding Palantir’s capabilities. Because these allegations of bias pertain to the
past conduct of certain Army personnel that occurred in the years before the DCGS-A
Increment 2 solicitation was issued, any evidence of this past conduct normally would not
have been included in the Administrative Record surrounding the 2015 DCGS-A
Increment 2 procurement at issue. As such, the court considered that the Administrative
Record regarding Palantir’s allegations of past biased conduct might be incomplete.
Nonetheless, the court found that the Administrative Record originally submitted to the
court by defendant included an Army investigative report regarding the April 25, 2012
ATEC report and the circumstances surrounding the rescission and modification of that
report in the revised May 25, 2012 ATEC report conducted by Lieutenant General William
Grisoli. Thus, the Administrative Record contained some information relevant to Palantir’s
allegations of past, biased conduct by Army personnel. The court reviewed the
investigative report in the Administrative Record, which indicated that “the Army G-2 team
is passionate and a little defensive about DCGS-A and its relationship with Palantir” and
that, at times, “some members of the G-2 staff lost some of their objectivity with respect
to how they presented information on Palantir and DCGS-A to Army senior leaders.” The
investigative report also indicated that the relevant G-2 staff included Lieutenant General
Legere and the Chief Information Officer of G-2, Lynn Schnurr. Although the investigative
report concluded that the April 25, 2012 ATEC report was not changed because of undue
influence from the G-2 staff, the court found that the need to conduct an investigative
report surrounding the circumstances of the April 25, 2012 ATEC report and the findings
concerning the G-2 staff in that report were a sufficient, factual predicate to justify limited

26
supplementation to the Administrative Record.20

Thus, after hearing from the parties, reviewing the Administrative Record, and
carefully considering the proposed evidence of possible bias and/or bad faith, the court
concluded that Palantir’s allegations of bias and/or bad faith surrounding the April 25,
2012 ATEC report and the 2013 MITRE Corporation information brief demonstrated
sufficient foundation to justify supplementation to the Administrative Record with Exhibits
3-6 for further effective review of the issues and for limited discovery of documents and
depositions. The court also concluded that further inquiry into Palantir’s allegations of
biased conduct by Lieutenant General Legere and Lynn Schnurr was necessary to
effectively review Palantir’s allegation that there was a long history of biased conduct
towards Palantir by Army personnel. The court, therefore, permitted Palantir to seek
limited document discovery related to “the modification or destruction” of the April 25,
2012 ATEC report, as well as the opportunity to take the depositions of Lieutenant
General Legere and Ms. Schnurr. With regard to Exhibits 2, 7, and 52, which Palantir
sought to add to the Administrative Record to support its bias and/or bad faith allegations,
the court determined that there was not a sufficient factual predicate to supplement these
exhibits into the Administrative Record.

Subsequently, on August 5, 2016, Palantir submitted to the court a declaration by
Palantir employee Douglas Philippone, the Global Defense Lead for Palantir USG, Inc.
and Palantir Technologies Inc., and an expert report written by Palantir employee Bryant
Choung, the Global Defense Engineering Lead for Palantir USG, Inc. and Palantir
Technologies Inc. Mr. Philippone’s declaration was intended to support Palantir’s bias
and/or bad faith allegations and Mr. Choung’s expert report was submitted to assist the
court with evaluating the technical issues raised in the complaint. On August 12, 2016,
defendant filed a motion to strike the declaration of Douglas Philippone and the expert
report of Bryant Choung. Although defendant moved to strike Mr. Philippone’s declaration
and the expert report of Mr. Choung, the court notes that, at the time defendant filed its
motion, neither of those documents had been included in the Administrative Record by
the court. Regardless, the issue for this court’s consideration as to whether the
declaration of Mr. Philippone and Mr. Choung’s expert report should be included in the
Administrative Record remained the same. This court reviewed the substance of the
parties’ submissions to determine whether the Administrative Record in this case should
be supplemented to include Mr. Philippone’s resubmitted declaration21 and/or Mr.
Choung’s expert report.

20Moreover, at the hearing on July 25, 2016, defendant acknowledged that Exhibits 3, 4,
and 5, which Palantir sought to add to the Administrative Record, were underlying
documents to the investigative report already contained in the Administrative Record.
21Prior to this August 5, 2016 submission, Palantir had attached two declarations, one by
Douglas Philippone and one by Bryant Choung as Exhibits 50 and 51 to its motion to
supplement the Administrative Record. At the hearing on July 25, 2016, the court denied
Palantir’s motion to supplement the Administrative Record with the two declarations
because they included legal conclusions, however, the court explained that Palantir could
re-file its declarations after removing the legal conclusions and the court would review
27
The court considered whether the addition of Mr. Philippone’s declaration to the
Administrative Record, and the exhibits attached thereto, was necessary for the court to
effectively review the agency procurement decisions at issue and whether they
individually contained sufficient “hard facts” to support protestor’s bias and/or bad faith
allegations and justify supplementation to the Administrative Record. As noted above,
suspicion and innuendo is not sufficient to warrant supplementation to the Administrative
Record. Notwithstanding protestor’s argument that “Mr. Philippone’s declaration includes
ample evidence of bias and/or bad faith that are the factual predicate for
supplementation,” the statements in the declaration do not allege reliably supported facts
sufficient to support protestor’s bias and/or bad faith allegations. In his declaration, Mr.
Philippone also refers to hearsay evidence, continues to assert legal conclusions, and
makes other statements and opinions that do not appear to be based on his personal
knowledge or necessary for effective judicial review. Accordingly, the court finds that
supplementation to the Administrative Record with Mr. Philippone’s declaration is not
appropriate.

With regard to Mr. Choung’s expert report, defendant argues that “[t]he Court by
entertaining expert testimony on the issues in the case goes far beyond the administrative
record, all without the predicate of first determining that the agency’s market research
clearly violated any law or regulation.” Defendant also argues that “there is a serious
question of credibility regarding both Mr. Choung’s declaration and his expert report,” and
that, “[b]ecause of the credibility issues inherent in Mr. Choung’s declaration and expert
report,” the court should refuse to consider Mr. Choung’s expert report. In arguing that
this court should not consider Mr. Choung’s expert report because of credibility issues,
defendant focuses on statements made by Mr. Choung in his expert report and deposition
about testing by the Defense Integrated Backbone (DIB) Management Office (DMO) in
May 2012. According to defendant, “Mr. Choung misrepresented the conclusions of the
DMO as a result of the May 2012 testing of Palantir DIB adapter,” and, because of that
misrepresentation, the court should not consider any part of Mr. Choung’s expert report.
Defendant argues that “the Court has the discretion to disregard Mr. Choung’s entire
declaration, expert report and deposition testimony because of discrepancies between
his declaration, expert report, and deposition testimony and the reported results of the
DMO tests in May 2012.”

In response, protestor argues that Mr. Choung’s expert report should be admitted
to the Administrative Record because “[t]his Court has already noted that it would benefit
from expert testimony to assist in evaluating the technical issues raised in this bid protest.”
Protestor asserts that “Mr. Choung’s report is designed to assist the Court by explaining
technical issues relating to DCGS and the Palantir Gotham Platform.” Additionally,
protestor argues that “[t]he Government does not dispute that Mr. Choung is qualified to
offer an expert opinion,” and protestor contends that defendant’s accusations about the

and reconsider adding the declarations to the Administrative Record. Palantir did not
submit a revised declaration of Mr. Choung, thus, the court only considered whether Mr.
Choung’s expert report is admissible to the Administrative Record.

28
credibility of Mr. Choung’s expert report are baseless and have “nothing to do with
whether Mr. Choung’s report should be admitted.” According to protestor, “a careful
review of the relevant documents and testimony establishes that the Government either
misunderstands or misrepresents both Mr. Choung’s testimony and Palantir’s DIB-related
capabilities.”

As explained above, the United States Court of Appeals for the Federal Circuit has
held that the “focus of judicial review of agency action remains the Administrative Record,
which should be supplemented only if the existing record is insufficient to permit
meaningful review consistent with the APA [Administrative Procedure Act, 5 U.S.C.
§§ 701-706].” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at 1381. When
necessary for meaningful judicial review, the court may supplement an administrative
record with an expert report in order to improve or clarify the court’s understanding of an
important issue in a bid protest. See Dyncorp Int’l, LLC v. United States, 125 Fed. Cl. at
3 (including expert report in the administrative record that aided “the Court in better
understanding the record”). As noted in FirstLine Transportation Security, Inc. v. United
States, “[s]everal post-Axiom decisions have allowed supplementation of the record when
necessary for the Court to have a complete understanding of the issues before it.”
FirstLine Transp. Sec., Inc. v. United States, 116 Fed. Cl. 324, 326 (2014). Other judges
of this court have held “that it is appropriate to supplement the record with expert
testimony when necessary to assist the Court in understanding technical or complex
information involved in a challenged procurement.” NCL Logistics Co. v. United States,
109 Fed Cl. 596, 613 (2013); see also Lab. Corp. of Am. Holdings v. United States, 116
Fed. Cl. 386, 390 (2014) (admitting expert declaration because the “expertise will greatly
assist the Court in understanding the evidence in the administrative record”); Guzar
Mirbachakot Transp. v. United States, 104 Fed. Cl. 53, 63 (2012) (holding that “[e]ffective
judicial review would be impeded where technical aspects of the procurement process
remain unexplained, preventing the parties from engaging in informed advocacy and the
Court from developing a full judicial record and accurate context for its decision”); East
West, Inc. v. United States, 100 Fed. Cl. 53, 57 (2011) (explaining that information
necessary for effective judicial review “might include tacit knowledge possessed by offeror
and agency personnel of a highly technical and complex nature. . .”). Expert testimony
may be offered to assist the court in understanding complex or technical information. See
NCL Logistics Co. v. United States, 109 Fed. Cl. at 613.

In this bid protest, although the court acknowledges some of defendant’s concerns
with regard to Mr. Choung’s credibility as an employee of protestor and as an expert
witness, the court finds that, given the highly technical nature of the Army’s requirements
and Palantir’s capabilities, expert reports are necessary for the court to effectively review
aspects of the challenged agency procurement action at issue in this bid protest.
Specifically, in order to determine whether Palantir may have a commercially available
product that would satisfy the Army’s requirements, such that Palantir was prejudiced by
the Army’s decision to issue a development-only solicitation, the court finds it appropriate
to consider the expert reports offered by both protestor and defendant. Defendant’s
arguments about Mr. Choung’s credibility, while noted by the court, did not eliminate the
probative value of Mr. Choung’s report, so as to warrant a decision to exclude Mr.
Choung’s expert report. The court evaluated Mr. Choung’s expert report in relation to all

29
the evidence in the Administrative Record. In this pre-award bid protest, which the agency
and protestor were eager to resolve as fast as possible, both parties were allowed to
designate one available expert witness, and then permitted to depose the opposing
party’s designated expert witness. Defendant had the opportunity to challenge Mr.
Choung’s allegedly inaccurate statements about the 2012 DMO testing results during the
deposition of Mr. Choung. The deposition transcript was available for the court’s
consideration and has been reviewed by the court. Accordingly, the Administrative
Record in this bid protest has been supplemented with the expert report of Mr. Choung,
as well as with the expert report of Mr. Shaun Cronen, the government’s designated
expert, a “Team Lead in the Intelligence Enterprise Branch of the Intelligence and
Systems Processing (ISP) Division of the Intelligence and Information Warfare
Directorate (I2WD) within the Communications-Electronics, Research, Development and
Engineering Center (CERDEC)” of the Army.

Two days before defendant filed its motion to strike Douglas Philippone’s
declaration and Bryant Choung’s expert report, defendant filed a motion for leave to file
three declarations of its own. Defendant sought to file the declarations of “Patricia L. Lee,
Lead Engineer for the DCGS Multiservice Execution Team Office”; “Michael Sherick,
contract specialist, U.S. Army Contracting Command Aberdeen Proving Ground”; and
“Jeff Stock, Chief Engineer for DCGS-A Increment 2, U.S. Army.”22 Palantir opposed
defendant’s motion unless the court afforded Palantir the opportunity to depose each of
the three declarants and defendant was required to produce any documents referred to
by one of the declarants, Mr. Sherick. The court held a status conference with the parties
to discuss defendant’s motion, and, as discussed with the parties during the status
conference, after careful review and consideration, the court issued an Order on August
24, 2016 granting defendant’s motion for leave to file the three declarations and Palantir
was permitted to take depositions of each of the three declarants. Subsequently, after
conducting the limited discovery that the court had permitted at the July 25, 2016 hearing
and the additional discovery permitted by the August 24, 2016 court Order, Palantir
moved for additional discovery on August 26, 2016 “relating to Palantir’s allegations of
bad faith and bias.” The court held another status conference on August 30, 2016 to
discuss Palantir’s subsequent motion for additional discovery. After hearing from the
parties, the court denied Palantir’s motion because Palantir’s discovery requests were too
broad and not based on sufficient evidentiary footing, but indicated it would reconsider
Palantir’s motion for additional discovery. Shortly thereafter, at a status conference on
September 6, 2016, Palantir proposed narrower discovery requests and defendant
produced nine additional documents. The parties agree that these nine documents should
be added to the Administrative Record and the nine documents are now part of the
Administrative Record. Thereafter, the parties filed supplemental briefs to include
references to the limited discovery permitted by the court, after which, the court held oral
argument on the parties’ cross-motions for judgment on the Administrative Record.

22Although defendant refers to the declaration of “Jeff Stock,” in the declaration included
with defendant’s motion for leave to file declarations, the individual’s name is “Jess
Stock.”

30
DISCUSION

Bias and/or Bad Faith

As a threshold issue, the court considers Palantir’s argument that the solicitation
at issue in this bid protest should be set aside because, allegedly, “the Army engaged in
arbitrary, capricious, and unlawful conduct . . . by engaging in bad faith conduct.”
(emphasis and capitalization removed). Palantir argues that, pursuant to 5 U.S.C. § 706,
“this Court must set aside as unlawful any solicitation” that is “‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’” Throughout this bid protest,
Palantir has alleged that a long-term pattern of bias and/or bad faith against Palantir
“infected” the agency’s decision-making process that led to the DCGS-A Increment 2
solicitation, which Palantir is challenging in this bid protest. Palantir alleges in its
complaint that the DCGS-A Increment 2 solicitation is the product of years of irrational
and bad faith conduct by program owners in certain sectors of the Army,23 and alleges
that such conduct includes “bureaucratic inertia, resistance to innovation, bias against
Palantir, the destruction of evidence, and the creation of misleading and deceptive
information.” (emphasis and capitalization removed). According to Palantir, “there is
ample evidence of malicious, bad faith conduct” that “reveals a deep-seated level of bias
against Palantir,” and that “[s]uch bias is irrational, arbitration [sic], and capricious.”
Accordingly, Palantir argues, “the Solicitation should be set aside as reflecting arbitrary
and capricious agency conduct.”

Palantir contends that the DCGS-A program owners have spent years “protecting
their own failed program,” and are resistant to any innovation from the commercial
software industry that could replace the DCGS-A, such as Palantir, and the Palantir
Gotham Platform. According to Palantir, “program owners in the Army—particularly within
the Army’s G-2 office, Intelligence and Security Command, and Intelligence and
Information Warfare Directorate of the Communications-Electronics Research and
Development Center—have resisted the Palantir Gotham Platform.” Palantir’s complaint
alleges that evidence of the Army’s bad faith conduct includes the “consistent hostility
that certain DCGS ‘program owners’ within the Army have shown to Palantir’s innovative

23 In its complaint, Palantir states:

The list of DCGS program owners involved in or associated with the DCGS-
A program include, among others, the following: Office of the U.S. Army
Intelligence Directorate (G-2, oversight and “customer” of DCGS-A);
Training and Doctrine Command; Program Executive Office Intelligence,
Electronic Warfare, and Sensors (PEO IEW&S) (parent office of PM DCGS-
A); Program Management Office, DCGS-A; U.S. Army Intelligence and
Security Command (INSCOM) (responsible for all the cloud projects, etc.);
Office of the Assistant Secretary of the Army for Acquisition, Logistics, and
Technology (ASA(ALT)); and various actors within the Defense Acquisition
System, including the Joint Requirements Oversight Council (JROC), the
Joint Capabilities Integration and Development System (JCIDS), and
others.
31
technology,” the suppression of “independent reports that were critical of DCGS-A and
complimentary of the Palantir Gotham Platform,” and the creation of “misleading
presentations for Congress and senior Department of Defense officials with inaccurate
descriptions of Palantir’s capabilities.”

In opposition to Palantir’s bias and/or bad faith allegations, defendant argues that
“Palantir’s claims are not supported by the administrative record.” Defendant also asserts
that “[t]he contracting officer and agency decision is entitled to a presumption of
regularity.” According to defendant, “[i]n order to overcome the presumption of good faith
and administrative regularity, the protestor must present ‘almost irrefragable proof’” of
bias or bad faith. (quoting Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330
(Fed. Cir.), reh’g denied (Fed. Cir. 2004)). Although defendant acknowledges that “[t]he
discovery permitted by the Court revealed a tension in the business relationship between
the Army and Palantir,” defendant asserts that “Palantir’s arguments do not meet the
stringent standard for proving bad faith.” Defendant argues that none of the limited
discovery that the court had permitted produced any evidence of bias and/or bad faith,
and Palantir’s mere disagreement with the overall agency policy decision does not
demonstrate an individual, much less institutional, bias and/or bad faith.

In order to prove that a government official’s actions were biased, a protestor must
overcome the well-established presumption that government officials act in good faith.
See Croman Corp. v. United States, 724 F.3d 1357, 1364 (Fed. Cir. 2013) (“The
presumption that government officials act in good faith is enshrined in our
jurisprudence.”); see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1337. A
protestor must offer “clear and convincing evidence” that the government did not act in
good faith in order to prevail. See Croman Corp. v. United States, 724 F.3d at 1364; see
also Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir.
2002). The United States Court of Appeals for the Federal Circuit has addressed the
standard for overcoming the presumption of good faith as follows:

Government officials are presumed to “act ‘conscientiously in the discharge
of their duties.’” Kalvar Corp., Inc. v. United States, 543 F.2d 1298, 1301
(Ct. Cl. 1976) (quoting Librach v. United States, 147 Ct. Cl. 605, 612
(1959)). Courts have always been “loath to find to the contrary,” and to
induce a court to abandon the presumption of good faith dealing, “requires
‘well-nigh irrefragable proof.’” Id. at 1301-02 (quoting Knotts v. United
States, 128 Ct. Cl. 489, 492, 121 F. Supp. 630 (1954)). Thus, [a protestor]
must offer clear and convincing evidence that [the government] did not act
in good faith in order to prevail on this issue. Am-Pro Protective Agency,
281 F.3d at 1239-40.

Croman Corp. v. United States, 724 F.3d at 1364; see also Savantage Fin. Servs. v.
United States, 595 F.3d 1282, 1288 (Fed. Cir. 2010); Am-Pro Protective Agency, Inc. v.
United States, 281 F.3d at 1239 (“The presumption that government officials act in good
faith is nothing new to our jurisprudence. See, e.g., Knotts v. United States, 128 Ct. Cl.
489, 492, 121 F. Supp. 630 (1954) (stating ‘we start out with the presumption that the
official acted in good faith’).”); Square One Armoring Serv., Inc., v. United States, 123

32
Fed. Cl. 309, 329 (2015) (holding that a plaintiff alleging that the government has acted
in bad faith must offer well-nigh irrefragable proof in support of its claim); Austin v. United
States, 118 Fed. Cl. 776, 790 (2014) (“To overcome this presumption, the plaintiffs must
produce ‘well-nigh irrefragable proof’ of bad faith on the part of the government.”); Kogan
v. United States, 112 Fed. Cl. 253, 266 (2013) (“The presumption of good faith ‘is valid
and binding unless well-nigh irrefragable proof is offered to rebut or overcome it.’
McEachern v. Office of Pers. Mgmt., 776 F.2d 1539, 1545 (Fed. Cir. 1985).”).

The presumption that government officials act in good faith, however, is rebuttable
and not automatically accepted by the court. The Federal Circuit in Am-Pro Protective
Agency defined the “clear and convincing” standard of proof a protestor must meet to
prevail as:

A requirement of proof by clear and convincing evidence imposes a heavier
burden upon a litigant than that imposed by requiring proof by preponderant
evidence but a somewhat lighter burden than that imposed by requiring
proof beyond a reasonable doubt. “Clear and convincing” evidence has
been described as evidence which produces in the mind of the trier of fact
an abiding conviction that the truth of a factual contention is “highly
probable.”

Am-Pro Protective Agency, Inc. v. United States, 281 F.3d at 1240 (quoting Price v.
Symsek, 988 F.2d 1187, 1191 (Fed. Cir. 1993)) (internal citations omitted in original and
emphasis in original). Moreover, the Federal Circuit described the type of proof necessary
to establish that a government official acted in bad faith by “clear and convincing”
evidence, as

equated with evidence of some specific intent to injure the plaintiff. Thus,
in Gadsden v. United States, [111 Ct. Cl. 487, 489-90 (1948),] the court
compared bad faith to actions which are “motivated alone by malice.” In
Knotts, the court found bad faith in a civilian pay suit only in view of a proven
“conspiracy . . . to get rid of plaintiff.” Similarly, the court in Struck Constr.
Co. v. United States, [96 Ct. Cl. 186, 222 (1942),] found bad faith when
confronted by a course of Governmental conduct which was “designedly
oppressive.” But in Librach, [v. United States, 147 Ct. Cl. 605 (1959),] the
court found no bad faith because the officials involved were not “actuated
by animus toward the plaintiff.”

…

Nothing in Brown’s affidavit [whereby Am-Pro attempted to show bad faith],
moreover, suggests that the government “had a specific intent to injure” Am-
Pro. Caldwell [& Santmyer, Inc. v. Glickman,] 55 F.3d [1578,] 1581 [(Fed.
Cir. 1995)]. And Am-Pro has not alleged that these threats were “motivated
alone by malice,” Gadsden v. United States, 111 Ct. Cl. 487, 489, 78 F.
Supp. 126 (1948); as part of a proven “conspiracy . . . to get rid of [Am-Pro],”
Knotts, 128 Ct. Cl. at 500, 121 F. Supp. 630; as part of a course of

33
governmental conduct which was “designedly oppressive,” Struck, 96 Ct.
Cl. at 222; or as “actuated by animus toward” Am-Pro, Librach, 147 Ct. Cl.
at 614.

Am-Pro Protective Agency, Inc. v. United States, 281 F.3d at 1240, 1241 (quoting in part
Kalvar Corp. v. United States, 211 Ct. Cl. 192, 543 F.2d 1298, 1302 (1976), cert. denied,
434 U.S. 830 (1977)) (citations omitted in original); see also Galen Med. Assocs., Inc. v.
United States, 369 F.3d at 1330 (“‘[A]llegations of bad faith . . . ha[ve] been equated with
evidence of some specific intent to injure the plaintiff.’” (quoting Torncello v. United States,
231 Ct. Cl. 20, 45, 681 F.2d 756, 770 (1982))); Info. Tech. & Applications Corp. [ITAC] v.
United States, 316 F.3d 1312, 1323 n.2 (Fed. Cir.) (“ITAC has pointed to no record
evidence of bias. Instead it has merely reiterated its contentions that the Air Force erred
in evaluating the proposals. This is not evidence of bias, and it is insufficient to overcome
the presumption that the contracting officer acted in good faith.”) (citations omitted), reh’g
and reh’g en banc denied (Fed. Cir. 2003); Dekatron Corp. v. United States, 128 Fed. Cl.
115, 118 (2016) (“Bad faith has been found when a contracting officer representative acts
with specific intent to injure or the contracting officer fails to exercise independent
judgment or remedy the contracting officer representative’s animus. . . .”); Madison Servs.
Inc. v. United States, 94 Fed. Cl. 501, 507 (2010) (“Because plaintiff submits as evidence
unsubstantiated innuendo and uncorroborated inferences, evidence that categorically
cannot meet a ‘clear and convincing’ standard, the court must deny plaintiff’s requests for
relief.”) (citations omitted); id. at 511 & 511 n.8 (adding unreliable hearsay and attorney
arguments to the list of what will not meet the standard for demonstrating bad faith); L-3
Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. at 354 (innuendo or
suspicion is not enough to demonstrate bad faith); N. Star Alaska Hous. Corp. v. United
States, 76 Fed. Cl. 158, 187-88 (“Courts have found bad faith when confronted by a
course of government conduct that was ‘designedly oppressive,’ Struck Constr. Co. v.
United States, 96 Ct. Cl. 186, 222, 1942 WL 4411 (1942), or that ‘initiated a conspiracy’
to ‘get rid’ of a contractor, Knotts v. United States, 128 Ct. Cl. 489, 121 F. Supp. 630, 636
(1954).”), appeal dismissed, 226 F. App’x 1004 (Fed. Cir. 2007).

To support its theory that a long-term climate of bias against Palantir “infected” the
path towards the solicitation, Palantir points to specific instances of alleged bias that it
asserts occurred between 2009 and the present, and asks “the Court to give particular
consideration to” those instances. According to Palantir, those instances cannot “be
explained away, and can only mean that there was an entrenched bias against Palantir
among certain DCGS-A program owners and G-2 staff within the Army.” Palantir suggests
that “the supplemental record supports a finding that certain personnel within the Army
had a bias against Palantir.” Palantir asserts that these alleged instances include: the
Army’s efforts to “block” Palantir from participating in certain “important” evaluations
between 2009 and 2011; false statements by the DCGS Program Manager to Congress
about Palantir; an e-mail from Army Major Greg Moore stating that there is an “entrenched
animosity” towards Palantir; the creation and distribution of documents by G-2 staff that
contained inaccurate statements about Palantir’s capabilities; efforts by Army personnel
to rescind and alter a report with favorable findings and recommendations regarding
Palantir; and the Army’s failure to investigate Palantir’s specific allegations of senior Army
personnel “blocking” requests in the field for Palantir’s technology.

34
According to Palantir, the Army’s G-2 staff and DCGS-A program owners blocked
Palantir from participating in Joint Intelligence Laboratory (JIL) and DCGS-A Systems
Integration Laboratory (SIL) evaluations between 2009 and 2011 that, according to
Palantir, would have helped to demonstrate Palantir’s ability to satisfy the requirements
set forth in the DCGS-A Increment 2 procurement, prior to the issuance of the solicitation.
Palantir alleges that, in 2009, “Palantir attempted to undertake an evaluation at the Joint
Intelligence Laboratory.” Palantir alleges, however, that “[j]ust before Palantir’s JIL
evaluation was scheduled to take place,” an Army official e-mailed a Palantir employee,
Douglas Philippone, notifying him that the evaluation was cancelled. Similarly, according
to Palantir, in November 2010, a contract was in place for Palantir to undergo testing at
the SIL. Palantir alleges that the SIL evaluation also never occurred. Palantir alleges that
it was “repeatedly blocked” from participating in testing at the SIL, which would have
demonstrated Palantir’s capabilities to the Army. Palantir alleges that “the Army has never
given a plausible explanation for why it blocked Palantir from participating” in either a JIL
or SIL evaluation.

Defendant asserts that the Army gave reasonable explanations for why the JIL and
SIL evaluations did not occur and that the deposition testimony of Ms. Schnurr and Mr.
Cronen corroborated those explanations. Defendant also argues that “the majority of
events that Palantir claims constitute ‘blocking’ are events that are 4 to 11 years prior to
the solicitation at issue, and are outside the relevant period of time to have any impact on
the current procurement.” Additionally, according to defendant, “Palantir has failed to
demonstrate what, if any, impact these events had” with respect to the choices made
regarding the DCGS-A Increment 2 solicitation.

The e-mail sent from the Army to Palantir cancelling the JIL evaluation on February
27, 2009, more than six years before the solicitation was issued, explains that:24

Lynn [Schnurr] is out of the office dealing with personal matters right now
and has authorized me to handle this matter. As of right now, the JIL
evaluation is cancelled.

...

The rationale for this decision is that the best way to focus your efforts at
this time is with the DCGS-A Mobile lead systems integrator, Northrup
Grumman. My understanding is that you have already begun discussions
with them so there should be no disconnect there. This provides the most
direct route to potential DCGS-A integration and fits cleanly into their
established business process. I understand that Palantir has a lot to offer
and ask that you concentrate your efforts on this vector and allow the PM
process to work and enable their LSI [lead systems integrator] to build the

24Although Palantir did not move to supplement the Administrative Record with this e-
mail, counsel for Palantir used this e-mail as an exhibit during the deposition of Lynn
Schnurr, which deposition the court has deemed necessary for effective judicial review.

35
best system possible for our Soldiers.

During the deposition of Ms. Schnurr, counsel for Palantir asked Ms. Schnurr about
the cancellation of the JIL evaluation, and referenced the above e-mail as an exhibit to
the deposition. Palantir points to the deposition testimony of Lynn Schnurr as support for
its allegation that the Army blocked Palantir from undergoing the JIL evaluation. The
deposition transcript of Ms. Schnurr indicates that she had difficulty recalling the reason
that the JIL evaluation was cancelled. When Palantir’s counsel asked Ms. Schnurr the
reason for the cancellation of the 2009 JIL evaluation, Ms. Schnurr responded: “My
understanding -- and again, that’s a long time ago -- was that it was a funding issue.” After
Palantir’s counsel showed Ms. Schnurr the e-mail cancelling the JIL evaluation, however,
Ms. Schnurr stated: “Sitting here today, based on what you’ve shown me, it looks as if the
recommendation was to not move forward with a JIL evaluation but to have them work
directly with Northrup Grumman to move things forward in a direct manner to help get
Palantir capability into the program.” Ms. Schnurr also was asked:

Q. Do you have any reason to believe that a company, which is a
subcontractor, would be precluded from participating in the Joint
Intelligence Laboratory evaluations?

A. I don’t know, but I would assume it would be okay.

Q. You’d assume it would be okay?

A. Uh-huh. But I don’t know.

...

Q. Why is working with Northrop Grumman mutually exclusive from getting
an evaluation under the JIL?

A. I wouldn’t think it is mutually exclusive.

Q. Then why did you cancel the JIL evaluation?

A. I did not cancel it personally.

Palantir asserts that, by testifying that Palantir could have been evaluated at the JIL and
simultaneously have worked with Northrup Grumman, “Ms. Schnurr effectively admitted
that the rationale given” for cancelling the JIL evaluation “did not make any sense.”
Palantir, however, mischaracterizes Ms. Schnurr’s testimony. While Ms. Schnurr did, in
fact, testify that Palantir might have been able to simultaneously work with Northrup
Grumman and undergo evaluation at the JIL, she did not, either directly or indirectly,
concede that the reason for the cancellation put forth in the e-mail to Palantir “did not
make any sense.”

Palantir argues that “the Army has never given a plausible explanation for why it
‘blocked’ Palantir from participating in this evaluation” and points to Mr. Schnurr’s

36
deposition testimony to argue that the cancellation of the JIL evaluation was motivated by
bias and/or bad faith. Palantir further asserts that Ms. Schnurr’s testimony reflects
“shifting and contradictory explanations that reveal a lack of candor and credibility as to
the reasons why this evaluation was cancelled.” Without further evidence, however,
Palantir’s position remains based only on allegations and suspicions of bias. The
apparent inconsistencies with Ms. Schnurr’s testimony could be attributed to her failed
memory after the passage of approximately seven years from the events in question to
the date of the deposition. Moreover, Ms. Schnurr testified that she “did not cancel the
JIL evaluation personally.” Without more evidence of intent, the e-mail sent to Palantir
cancelling the JIL evaluation on February 27, 2009 does not offer sufficient evidence of
bias and/or bad faith on the part of the agency as it relates to the developmental
solicitation for DCGS-A Increment 2.

Palantir’s counsel also asked Ms. Schnurr about the SIL evaluation cancellation
during her deposition. Ms. Schnurr was asked: “Did Palantir ever undergo an evaluation
in the SIL?” To which she responded: “I think they did, but I don’t recall all the details of
it. It’s been so long, but I know they did.” Palantir’s counsel asked additional questions
about the SIL evaluation, but it is apparent from her deposition testimony that Ms. Schnurr
was not involved with the SIL. Ms. Schnurr stated: “I don’t recall because I didn’t work the
SIL, didn’t have any responsibility for the SIL;” “Again, that SIL work was totally separate
in my office. We had nothing to do with that;” “Again, I did not work the SIL;” and, later, “I
don’t know the details of what happened in the SIL.” Given her testimony that she was
not involved with the SIL and did not remember anything about the SIL evaluation, her
testimony as to why the SIL evaluation did or did not occur does not provide support for
protestor’s allegations. In addition, the JIL and SIL evaluations were cancelled between
2009 and 2011, years before the solicitation at issue in this bid protest was released.
Given the lapse in time, it is unclear, without further evidence, whether those cancellations
between 2009 and 2011 were directly related to the decision to issue the DCGS-A
Increment 2 procurement as a developmental one. Therefore, Palantir’s allegations of
“blocking” of the JIL and SIL evaluations do not provide sufficient evidence to demonstrate
bias or bad faith. As stated above, a protestor must show “clear and convincing evidence”
to prevail on a claim of bias and/or bad faith and Palantir has failed to do so with regards
to the JIL or SIL evaluations. See Croman Corp. v. United States, 724 F.3d at 1364.

Related to Palantir’s allegations that the Army “blocked” the JIL and SIL
evaluations, Palantir alleges that “[a]fter Palantir was blocked from conducting the SIL
evaluation, the DCGS-A Program Manager, Colonel Wells” made inaccurate statements
to Congress about the SIL evaluation. Specifically, Palantir alleges that Army Colonel
Charles Wells told Congress, not only that the SIL evaluation had occurred, but also, “that
Palantir was unwilling to fully integrate its product with DCGS-A,” and that the evaluation
revealed that Palantir’s features limited intelligence collaboration and sharing. According
to Palantir, Colonel Wells communicated this inaccurate information to Congress via
Information Papers on September 30, 2011 and October 18, 2011. Defendant argues,
however, that the statements in the Information Papers submitted to Congress do not
demonstrate bias and/or bad faith. Similar to Palantir’s allegations that the JIL and SIL
evaluations were “blocked” by the Army, Palantir’s allegation that inaccurate statements
made to Congress are evidence of the Army’s bias and/or bad faith is not supported by

37
the Administrative Record. Palantir’s assertion that the Army communicated to Congress
information that may have been inaccurate does not, without further evidence, establish
that the representations made to Congress were motivated by bias and/or bad faith on
the part of the critical decision makers regarding the DCGS-A Increment 2 solicitation. It
is not clear in the Administrative Record what was the source of the alleged incorrect
information or whether the information was utilized by the decision makers who produced
the developmental procurement at issue in this protest.

In addition to the allegedly “blocked” JIL and SIL evaluations, Palantir also alleges
that the “former Chief Information Officer for G-2,” Lynn Schnurr, and the “former Deputy
Chief of Staff of the Army for G-2 (Intelligence),” Lieutenant General Mary Legere, were
biased against Palantir and acted on that bias. To support Palantir’s allegations, Palantir
points to several instances that allegedly occurred after 2011. For example, Palantir
points to an e-mail sent on November 6, 2015, that pertained to a slide presentation on
the DCGS-A Program and Palantir’s capabilities. The author of the e-mail, Colonel Jack
Dills, stated: “Apparently LTG Legere had some issues with the brief and afterward
expressed her issues to MG [Major General] Ostrowski.” According to Palantir, in an e-
mail sent on March 10, 2012 to Douglas Philippone of Palantir, Army Major Greg Moore
admitted that G-2’s Chief Information Officer, Lynn Schnurr, had an “entrenched
animosity” toward Palantir “which has been spread and inculcated into the DA staff.”
(emphasis removed). Additionally, Palantir alleges that, at some unidentified point prior
to December 15, 2011, Ms. Schnurr gave negative feedback about Palantir that led a
defense contractor to decide against working with Palantir. To support this allegation,
Palantir relies on another e-mail from Army Major Greg Moore, dated December 15, 2011,
in which he stated that “[n]egative feedback from the DA G2 CIO [Lynn Schnurr] at the
time caused Lockheed Martin [the contractor] to wave off” and enter into discussions with
companies other than Palantir. Palantir also alleges that Lynn Schnurr and Lieutenant
General Mary Legere circulated various documents that contained “inaccurate” and
“misleading” information about Palantir, including, but not limited to, a July 2012
memorandum that discussed Palantir’s capabilities and an undated venn diagram that
was allegedly distributed among Army officials and purported to compare Palantir’s
capabilities with that of DCGS-A. (internal citations omitted). The venn diagram depiction
appeared as follows:

38
DCGA-A Lite

DCGS-A
PALANTIR
SIGINT
HUMINT
MASINT
Ease of
CELLEX GMTI
Link Use
IMINT DOMEX
Analysis
Geospatial
Joint Interoperability
MSN CMD System Visualization
Interoperability
Open Source

Data Sharing
Mapping
Easily
Trained

Disconnected/
Low Bandwidth

Defendant argues that Palantir’s claim that the Army G-2 circulated inaccurate information
about Palantir’s capabilities lacks merit because the information was believed to be
accurate at the time it was distributed. Defendant further argues that Palantir has
misstated or mischaracterized the deposition testimony of Lieutenant General Legere in
its attempt to support its allegations of bias and bad faith. Defendant asserts that Ms.
Schnurr’s deposition testimony “demonstrates the Army [sic] intent to work with Palantir
and integrate the Palantir Platform into the DCGS.”

As indicated above, Palantir was given the opportunity to depose Lieutenant
General Legere and Ms. Schnurr. During the depositions, counsel for Palantir asked
Lieutenant General Legere and Ms. Schnurr about the allegedly inaccurate information

39
that was circulated about Palantir within the Army. Specifically, Lieutenant General
Legere was asked about a July 2012 Information Paper to Congress and slide
presentation that included the venn diagram depicting Palantir’s capabilities. Palantir’s
counsel asked Lieutenant General Legere about the accuracy of these documents and
several of the statements contained therein. In response to questions about the accuracy
of certain statements in the 2012 Information Paper, Lieutenant General Legere explained
that the statements reflected the understanding of Palantir’s capabilities in 2012.
Similarly, when questioned regarding the information about Palantir depicted in the venn
diagram, Lieutenant General Legere responded that the venn diagram reflected “our
understanding based on how we were using it [Palantir],” which was “[b]ased on the way
the soldiers were using it and the way they were describing it.” Ms. Schnurr was asked
about the accuracy of the venn diagram by Palantir’s counsel during her deposition, she
stated that “it appears to be” accurate “[b]ased on what I was told by engineers.” Similarly,
during Ms. Schnurr’s deposition, Palantir’s counsel asked her about the accuracy of
statements in the July 2012 Information Paper she had signed, and she explained that
the statements were based on “knowledge that engineers in the field had assessed”
regarding Palantir’s capabilities. Ms. Schnurr testified that as of July 2012, the July 2012
Information Paper was a fair and accurate representation of Palantir’s capabilities, and
“[a]s of February of 2012,” the venn diagram was a fair and accurate representation of
Palantir’s capabilities.

Although Lieutenant General Legere admitted during her deposition that
“everybody was sort of talking past each other,” and that, referring to Palantir and the
Army, “[b]oth sides misrepresent the capabilities of both,” her deposition testimony does
not amount to clear and convincing evidence of bias and/or bad faith.25 Instead, as even
defendant has agreed, the deposition testimony suggests lack of communication and
tension between the Army and Palantir. Lieutenant General Legere explained during her

25 During her deposition, Lieutenant General Legere was asked if she was

familiar with the fact that the solicitation that was ultimately issued in
December 2015 for the procurement of Increment 2 for DCGS sought bids
from offerors who would enter into a developmental contract on some kind
of cost-plus basis and did not seek bids from people who wanted to sell a
commercial item[.]

Lieutenant General Legere answered “no.” Although the court has serious doubts about
Lieutenant General Legere’s purported lack of knowledge regarding DCGS-A Increment
2, considering her leadership role within G-2 and her involvement with the DCGS-A
program, during her deposition, Lieutenant General Legere denied having ever said each
of the statements in the e-mail that were attributed to her, and which Palantir alleges
demonstrated the Army’s bias against Palantir. Although Lieutenant General Legere’s
credibility may be diminished in the view of the court, some of her testimony was
uncontroverted. Regarding the issues of bias and/or bad faith, her testimony, and the
testimony about her purported views, was not sufficient to carry protestor’s high burden
of proof on the issue.

40
deposition that the Army’s presentation of Palantir’s capabilities evolved and improved
over time as the Army continued to communicate with Palantir. According to Lieutenant
General Legere:

I think in our conversations in relationship with the company over time,
because really there were some serious objections to the way we were
describing this, and I absolutely understand from a stakeholder in the
company perspective why we got a little bit more -- we got much more
precise. And in turn Palantir got more precise about what DCGS is and how
what we do relates. So

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4097186. Public record. Not legal advice.