Loomacres, Inc. v. United States

In the United States Court of Federal Claims

No. 17-824C

(Bid Protest)

(Filed: February 21, 2018)1

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

*

LOOMACRES, INC., * Bid Protest; In-Sourcing

* Decision; Sikes Act, 16 U.S.C.

Plaintiff, * § 670a; OMB Circular A-76;

* Statutory Construction.

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

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Melody D. Westfall, Scalfone Law PLLC, 247 W. Fayette St., Suite 203, Syracuse, NY

13202, for Plaintiff.

Chad A. Readler, Robert E. Kirschman, Jr., Douglas K. Mickle, Meen Geu Oh, U.S.

Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben Franklin

Station, Washington, D.C. 20044, for Defendant. Erika L. Whelan Retta, Air Force Legal

Operations Agency, Commercial Law and Litigation Directorate, 1500 W. Perimeter Road, Suite

1780, Joint Base Andrews, MD 20762, Of Counsel.

_________________________________________________

OPINION AND ORDER GRANTING DEFENDANT’S MOTION

FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

__________________________________________________

WILLIAMS, Judge.

This bid protest comes before the Court on the parties’ cross-motions for judgment on the

Administrative Record (“AR”). Plaintiff, Loomacres, Inc., challenges the decision of the United

States Air Force to insource Bird/Wildlife Aircraft Strike Hazard (“BASH”) program-related

services for the Cannon Airforce Base (“Cannon AFB”) in New Mexico. Plaintiff alleges that in

1

The Court issued this opinion under seal on February 8, 2018, and directed the parties to

file any proposed redactions on or before February 22, 2018. The Court publishes this Opinion

indicating redactions by asterisks “[***].”

insourcing these services, the Air Force violated the Competition in Contracting Act of 1988

(“CICA”), 10 U.S.C. § 2304, the Federal Acquisition Regulation (“FAR”), 48 C.F.R. 6.303–2, the

Economy Act of 1933, 31 U.S.C. § 1535, and Office of Management and Budget Circular A-76

(“OMB Circular A-76”).2 Plaintiff asks the Court to order the Air Force to terminate the contract

between the Air Force and the United States Department of Agriculture (“USDA”), Animal &

Plant Health Inspection Service, Wildlife Services (“USDA-WS”) and procure these BASH

services utilizing competitive procurement procedures.

The Court denies the protest. As the Sikes Act makes clear, OMB Circular A-76 does not

govern procurements of services that are necessary for the implementation or enforcement of an

Integrated Natural Resources Management Plan, and the Air Force was required to give priority to

a Federal conservation or wildlife agency to perform such services. 16 U.S.C. § 670a(d) (2012).

As Defendant argues, because the BASH services at issue were necessary for implementing the

Air Force’s Integrated Natural Resources Management Plan and USDA-WS was capable of

performing those services, it was compelled to award that work to USDA without conducting an

open competition or considering cost.

Plaintiff attempts to narrowly parse the Sikes Act, contending that Integrated Natural

Resources Management Plans cannot encompass BASH programs because such Management

Plans may only address resource management and conservation while BASH programs are

confined to safety. As such, in Plaintiff’s view, the Air Force’s Integrated Natural Resources

Management Plans could not have addressed BASH programs, the Sikes Act cannot apply, and

Defendant was required to conduct a full and open competition.

Plaintiff’s tortured argument misinterprets the Sikes Act and ignores the fact that

preventing birds and small mammals from colliding with aircraft clearly entails wildlife and/or

natural resources management. While such management may also be characterized as enhancing

safety, that does not alter the fact that Integrated Natural Resources Management Plans encompass

wildlife management, including birds and small mammals. Plaintiff’s suggestion that Integrated

Natural Resources Management Plans cannot include BASH services aimed at preventing wildlife

colliding with aircrafts, because such services must instead be pigeonholed into a separate category

of “safety,” fails.

Alternatively, Plaintiff posits that even if the Sikes Act applies to BASH services, the Air

Force’s decision to insource was improper because the agency failed to compare the cost of USDA-

WS’s performance with the cost of contracting with a private entity such as Loomacres. Plaintiff’s

interpretation would render meaningless the Sikes Act’s clear exemption of designated natural

resources management procurements from OMB Circular A-76 and has no support in the statute.

The Air Force properly interpreted the Sikes Act to conclude that it was not permitted to consider

comparative cost in awarding this requirement to USDA-WS.

2

OMB Circular A-76 is appended to Defendant’s Motion for Judgment on the

Administrative Record as Exhibit 1.

2

Findings of Fact3

Loomacres is Awarded a Contract to Provide BASH Services in 2014

Loomacres is a corporation that provides airfields with wildlife hazard management,

research, consulting, and operational and technical assistance. AR 3. On September 30, 2014, the

Air Force awarded Loomacres a contract to provide Cannon Airforce Base in New Mexico, with

BASH program-related services.4 That contract required Loomacres to:

provide a comprehensive “Bird/Wildlife Hazard Control” program…with focus on

eliminating or minimizing wildlife hazards for safe air and ground support

operations at Cannon AFB, New Mexico including but not limited to mountain lion,

deer, coyotes, snakes, birds, etc.

Pl.’s Mot. Suppl. Ex. B, at 3.5 Loomacres’ contract was later extended and expired by its own

terms on December 29, 2016. AR 5.

The Air Force Considers How to Acquire These Services in 2016 and Contacts USDA

On February 23, 2016, Cannon AFB contracting officials met to consider next steps for

reprocuring BASH services after the expiration of Loomacres’ contract. AR 200. Although the

Air Force’s Contract Specialist [***] believed the Air Force “w[ould] have no problem obtaining

sufficient competition,” having identified four interested vendors, she also recognized that she

needed to contact the USDA and the New Mexico Fish and Wildlife Service and “request the

3

These findings of fact are derived from the AR. Additional findings of fact are in the

Discussion.

4

Defendant represented that it only awarded a contract to Loomacres in 2014, because the

USDA was incapable of providing these services at the time. AR 11.

5

Plaintiff moved the Court to supplement the Administrative Record with four documents

pertaining to Plaintiff’s predecessor contract—Plaintiff’s proposal regarding Solicitation No.

FA4855-14-R-0021; the Performance Work Statement in Solicitation No. FA4855-14-R-0021; the

predecessor contract, Contract No. FA4620-14-D-A002; and Defendant’s July 17, 2015 quarterly

assessment of Plaintiff’s performance under Contract No. FA4620-14-D-A002. The Court may

only supplement the Administrative Record where “the omission of extra-record evidence

precludes effective judicial review.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,

1380 (Fed. Cir. 2009) (internal citation and quotation marks omitted). In this bid protest, Plaintiff

challenges the United States Air Force’s decision to insource work to USDA-WS without

considering cost or conducting an open competition. Plaintiff seeks to rely upon its predecessor

contract, its scope of work under that contract, its cost of performance, and the quality of its

performance in support of its contentions that the work at issue should have been competed. These

materials illuminate the nature of the work at issue and are relevant to Plaintiff’s argument that

BASH services are not subject to Integrated Natural Resources Management Plans covered by the

Sikes Act. As such, to fully consider Plaintiff’s arguments, the Court accepts these materials into

the AR, as they are necessary for effective judicial review. Id.

3

letters stating that the requirement is not their responsibility, or that they do not have bodies to

fulfill the need.” AR 203.

On March 17, 2016, Daniel Sullivan, Wildlife Biologist and Chief of Air Force BASH

Team HQ Air Force Safety, noticed a solicitation posted online for a BASH-related contract at

Cannon AFB and questioned whether the Air Force had first pursued a proposal from the USDA

prior to sending out the notice. AR 206. There followed an internal discussion among Air Force

personnel regarding fulfilling this requirement, that ultimately resulted in Wildlife Biologist

Sullivan instructing Contract Specialist [***] to contact the USDA and ask for a proposal as “Sikes

Act is a Federal Law” and the USDA “must be given priority to conduct wildlife damage control

on [the] installation.” AR 207. Wildlife Biologist Sullivan stated:

If USDA-WS is able to perform the job – it must be given to this federal agency

before going out to bid[.] Government agencies do not bid, they give you a proposal

and if it satisfies the PWS – they must be granted the position. Cost is no reason

not to go with a federal agency when managing natural resources (wildlife is a

natural resource).

Id.

The next day, June 2, 2016, Brian Archuleta, Supervisory Wildlife Biologist at USDA,

presented the Air Force with a draft work plan, stating that “once the work plan is approved by

Cannon and an Interagency Agreement (IA) is in place, we can put out a vacancy announcement

for a certified Airport Biologist to start on or around Oct 1, 2016.” AR 210. USDA’s draft work

plan stated that USDA-WS’s overall goal would be to

maintain a biologically-sound [Integrated Wildlife Damage Management] program

to assist property owners, businesses, private citizens, and governmental agencies

in resolving wildlife damage problems and conduct control activities in accordance

with applicable Federal, State and local laws and regulations. Assistance may be in

the form of providing technical assistance or direct control activities.

Recommendations and control activities will emphasize long term solutions and

incorporate the Integrated Wildlife Damage Management approach.

AR 212.

In order to accomplish this overall goal, USDA-WS agreed to provide the following

services:

(1) technical assistance through demonstration and instruction of wildlife damage

prevention and/or control techniques;

(2) wildlife identification and removal when domestic pet, property or natural

resource damage is verified;

(3) removal of wildlife displaying aggressive behavior or causing actual injury to

base residents and/or employees;

(4) nuisance wildlife removal when property damage is identified.

4

AR 213.

USDA’s draft work statement also identified 10 specific tasks USDA-WS would perform,

including:

3. Safely & professionally utilize approved wildlife damage management

tools/equipment including firearms (including high-pressure air rifles), advanced

optics, assorted snaring devices, all-terrain vehicles, leg-hold traps for the

protection of endangered species and public safety, cage-type & other specialized

traps, deterrent methods/devices (including pyrotechnics), Environmental

Protection Agency approved toxicants (including euthanasia drugs), night vision

equipment and electronic calling devices.

* * *

5. Identify wildlife hazards to aircraft and human safety at Cannon AFB

6. Provide integrated pest management recommendations to Cannon AFB on

mitigating wildlife hazards to aircraft and human safety. WS will provide the

nonlethal and lethal control of wildlife to provide the safest air operations possible.

These techniques will include but not limited to trapping, hazing with pyrotechnics,

and shooting of birds and mammals.

7. Conduct operational wildlife hazard management activities and wildlife surveys

on at Cannon AFB to reduce avian and mammalian wildlife hazards to aircraft and

human safety.

8. Provide training to Cannon AFB personnel in identifying and managing wildlife

hazards at the facility. The length and frequency of training sessions will be agreed

upon by WS and Cannon AFB. In addition WS will train of airport staff in hazing,

wildlife identification, and bird strike notification procedures.

AR 213-14.

During the summer of 2016, the Air Force and USDA communicated regarding these

BASH services, and considered “an interagency agreement versus obtaining competitive

proposals.” AR 273-77; see AR 257.

Loomacres’ Contract is Extended; Loomacres Challenges the Agency’s Decision to Insource

To avoid a gap in services, the Air Force modified Loomacres’ contract on September 23,

2016, extending work through December 29, 2016, for a total additional cost of $24,981.10. AR

706-11.

At the culmination of its long deliberative process, the Air Force:

concluded that the Sikes Act, Air Force Instruction (AFI) 32-7064, and Department

of Defense (DOD) Instruction 4715.03 required that priority must be given to

Federal and state wildlife and conservation agencies to supply a wildlife biologist

to supervise the BASH program at Cannon Air Force Base (Cannon AFB) in 2016.

5

That decision was grounded in the language of the Sikes Act which states, “priority

shall be given to the entering into of contracts for the procurement of such

implementation and enforcement services with Federal and State agencies having

responsibility for the conservation or management of fish and wildlife.”

Sullivan Decl. ¶ 3 (Dec. 15, 2017).6 Accordingly, the Air Force proceeded to insource the work

to USDA-WS rather than conduct a full and open competition.

On September 8, 2016, Loomacres challenged the Air Force’s decision to “sole-source”

the BASH contract to the USDA rather than solicit proposals from the private sector. AR 389-90.

After receiving Loomacres’ challenge, the Air Force concluded that BASH services “fall within

the scope of the Sikes Act [16 U.S.C. § 670a(d)(2)] requirement to give ‘priority’ to Federal and

State agencies when entering into contracts for management of wildlife.” AR 439.

The Air Force Awards the Work to USDA

The Air Force and USDA executed an interagency agreement in December 2016,

committing $111,300.01 of Air Force funds for one USDA biologist, as well as necessary

equipment, for a nine-month period, from January 8, 2017, through September 30, 2017. AR 495,

AR 499-515. The USDA biologist completed his initial term on September 30, 2017, and his detail

was renewed for a second one-year term. Tr. 15, 20.7

Procedural History

Plaintiff filed a protest with the Government Accountability Office (“GAO”) on October

14, 2016, and on January 18, 2017, GAO dismissed Plaintiff’s protest as untimely and determined

that Plaintiff failed to establish how any particular action or inaction by the Air Force constituted

a violation of the procurement requirements or procurement-related statutes and regulations. AR

60-64.

Plaintiff filed the instant action on June 19, 2017. On August 11, 2017, Defendant moved

this Court to dismiss for lack of jurisdiction. Briefing was completed on September 8, 2017, and

oral argument was held on October 18, 2017. The Court denied the Government’s motion orally

on October 18, 2017, and issued a written opinion memorializing its decision on October 31, 2017.

Loomacres, Inc. v. United States, 134 Fed. Cl. 779 (2017). Defendant filed the AR on November

29, 2017, and the parties filed cross-motions for judgment on the Administrative Record on

December 19, 2017. Briefing was completed on January 16, 2018. On January 26, 2018, the Court

ordered Defendant to address two issues regarding the AR, which Defendant did via the

Declaration of Charles Dixon, filed on January 30, 2018.

6

Mr. Sullivan’s declaration succinctly states the agency’s final determination and rationale,

which were evidenced in numerous places throughout the AR, does not constitute extra-record

material, and facilitates judicial review. As this declaration was submitted to address the harm the

Air Force would incur if injunctive relief were granted, the declaration is properly part of the

Court’s record. See East West Inc. v. United States, 100 Fed. Cl. 53, 57 (2011).

7

Citations to “Tr.” are to the Court’s October 18, 2017 oral argument regarding Defendant’s

Motion to Dismiss.

6

Discussion

Jurisdiction and Standard of Review

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1491(b). The Court

evaluates bid protests under the Administrative Procedure Act’s standard of review. Bannum, Inc.

v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (citing Impresa Construzioni Geom.

Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). This Court will not

disturb an agency’s procurement decision unless the Court finds that it was “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012);

Adams & Assocs., Inc. v. United States, 741 F.3d 102, 105-06 (Fed. Cir. 2014). A procurement

decision may be set aside if either:

(1) the procurement official’s decision lacked a rational basis; or (2) the

procurement procedure involved a violation of regulation or procedure. A court

evaluating a challenge on the first ground must determine whether the contracting

agency provided a coherent and reasonable explanation of its exercise of discretion.

When a challenge is brought on the second ground, the disappointed bidder must

show a clear and prejudicial violation of applicable statutes or regulations.

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal citations

and quotation marks omitted). Plaintiff bears a “heavy burden” of proving lack of rational basis

or violation of the law by a preponderance of the evidence. Impresa, 238 F.3d at 1333 (internal

citation and quotation marks omitted).

The Court will “uphold a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281,

286 (1974). The Court will not overturn an agency decision “‘even though it might, as an original

proposition, have reached a different conclusion as to the proper administration and application of

the procurement regulations’” if the Court finds a reasonable basis for the agency’s action.

Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co.

v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)).

If this Court finds that the agency acted arbitrarily, capriciously, or contrary to law, the

plaintiff must also show that it was prejudiced by this conduct to prevail. Bannum, 404 F.3d at

1351. This requires the plaintiff to demonstrate that there was a “substantial chance” the plaintiff

would have received the contract award but for the Government’s errors in the procurement

process. Id. at 1358. Under Rule 52.1 of the Rules of the Court of Federal Claims, the parties are

limited to the AR, and the Court makes findings of fact as if it were conducting a trial on a paper

record. See id. at 1354.

The Air Force Reasonably Awarded the Work to USDA-WS

At issue is the Air Force’s decision to insource BASH services from USDA instead of

procuring such services using full and open competition. The Air Force determined that the Sikes

Act required it to award the requirement to USDA as that Act both exempts procurements for

services that implement its Integrated Natural Resources Management Plans from OMB Circular

A-76, and requires granting federal agencies charged with managing natural resources—like

USDA—priority in providing such services. Plaintiff claims that the Air Force’s insourcing

7

decision violated the Competition in Contracting Act of 1988 (“CICA”), 10 U.S.C. § 2304, the

Federal Acquisition Regulation (“FAR”), 48 C.F.R. 6.303–2, the Economy Act of 1933, 31 U.S.C.

§ 1535, and OMB Circular A-76, as the agency failed “to obtain full and open competition for its

new BASH contract” and failed to conduct a cost-benefit analysis to support its insourcing

decision. Pl.’s Mot. 29-35. Specifically, Plaintiff complains that the Air Force unlawfully:

(1) determined that BASH programs were encompassed within Integrated Natural

Resources Management Plans;

(2) sought a proposal from USDA-WS instead of conducting a full and open competition;

and

(3) awarded the work to USDA-WS without considering the comparative cost of

performing those same services via the private sector.

None of Plaintiff’s contentions have merit.

The Air Force Reasonably Construed the Sikes Act to Conclude that Integrated

Natural Resources Management Plans Encompass BASH Programs

The Sikes Act provides that “[t]he Secretary of Defense shall carry out a program to

provide for the conservation and rehabilitation of natural resources on military installations,” and

in support of that program, requires “the Secretary of each military department” to “prepare and

implement an integrated management plan for each military installation” unless deemed

unnecessary for a particular installation. 16 U.S.C. § 670a(a). The statute provides a list of

activities that must be addressed in each Integrated Natural Resources Management Plan,

including:

(A) fish and wildlife management, land management, forest management, and fish-

and wildlife-oriented recreation;

(B) fish and wildlife habitat enhancement or modifications;

* * *

(I) no net loss in the capability of installation lands to support the military mission

of the installation; and

(J) such other activities as the Secretary of the military department determines

appropriate.

§ 670a(b)(1).

The Sikes Act exempts the procurement of services necessary to implement such Integrated

Natural Resources Management Plans from OMB Circular A-76 and mandates that agencies grant

“priority” to acquiring such services from federal and state agencies charged with conservation or

management of fish or wildlife. The Sikes Act provides:

With regard to the implementation and enforcement of integrated natural resources

management plans agreed to under subsection (a) of this section - -

8

(1) neither Office of Management and Budget Circular A-76 nor any

successor circular thereto applies to the procurement of services that are

necessary for that implementation and enforcement; and

(2) priority shall be given to the entering into of contracts for the

procurement of such implementation and enforcement services with Federal

and State agencies having responsibility for the conservation or

management of fish or wildlife.

§ 670a(d). As set forth in the Act’s legislative history, “the U.S. Fish and Wildlife Service or the

appropriate state fish and wildlife agency should receive priority consideration for award of these

contracts” because “conservation of these resources is best accomplished by ensuring that

activities relating to fish and wildlife are undertaken by individuals with professional competence

in the management of these resources.” H.R. Rep. No. 99-129, pt. 1, at 8 (1986), as reprinted in

1986 U.S.C.C.A.N. 5254, 5260.

In Air Force Instruction 32-7064, the Secretary of the Air Force determined that BASH

programs were an appropriate activity to be governed by Air Force Integrated Natural Resources

Management Plans, explaining that: “[t]he installation Integrated Natural Resources Management

Plan must support the BASH Plan,” “must address habitat management techniques that can reduce

the potential for wildlife hazards to aircraft operations,” and must reference the BASH Plan. AR

158 (AFI 32-7064 (Nov. 18, 2014), Sec. 15.1.1).8 Consistent with Air Force Instruction 32-7064,

Cannon AFB’s Integrated Natural Resources Management Plan encompasses BASH services—it

sets out management strategies to address challenges regarding bird strikes at Cannon AFB, and

lists “projects necessary to meet” the Plan’s goals relating to migratory bird monitoring or BASH,

including assessing potential bird aircraft strike hazards, outlining the policies and procedures to

handle and mitigate risks and hazards associated with flight operations, and identifying procedures

for reporting strikes. AR 610-11, 616-17, 627-28.9

Plaintiff’s principal argument is that the Air Force abused its discretion in determining that

BASH programs are properly addressed in Air Force Integrated Natural Resources Management

Plans, because BASH programs are solely focused on aviation safety, not resource management.

In Plaintiff’s view, the Sikes Act cannot apply as a matter of law to BASH services because the

Act does not encompass BASH services. Plaintiff’s reading of the Act is untenable.

BASH programs clearly implement wildlife and land management even though they also

relate to safety. See Air Force Instruction 32-7064, Sec. 15.3, “Management of Wildlife in Support

of the BASH Plan,” set forth in Appendix A at 16 (“Although the Air Force Safety Center is

responsible for the overall AF BASH program, natural resources and pest management personnel

are an integral part of every installation BASH program.”).

As the Air Force succinctly explained:

8

The pertinent portion of AFI 32-7064 is set forth in Appendix A.

9

A description of the pertinent parts of the Air Force’s Integrated Natural Resources

Management Plan is set forth in Appendix B.

9

[t]he focus of the BASH program is to prevent wildlife-related aircraft mishaps and

reduce the potential for wildlife hazards to aircraft operations. Accomplishing this

goal requires knowledgeable natural resources management on and adjacent to

installation airfields.

AR 158. BASH programs implicate numerous categories of activities that the Sikes Act requires

agencies to address in their Integrated Natural Resources Management Plans, including:

1. “fish and wildlife management, land management, [and] forest management,”

§ 670a(b)(1)(A), as BASH programs may require killing wildlife, AR 160 (“[l]ethal

control is authorized”) and “[t]he land adjacent to aircraft operations areas must be

managed to minimize attractions to wildlife,” AR 158;

2. “fish and wildlife habitat enhancement or modifications,” § 670a(b)(1)(B), as “habitat

management techniques [] can reduce the potential for wildlife hazards to aircraft

operations,” AR 158; and

3. ensuring “no net loss in the capability of installation lands to support the military

mission of the installation,” § 670a(b)(1)(I), as resource “management on and adjacent

to the managed airfield to support BASH Plan objectives is a military readiness

activity.” AR 158; see Appendix B.

The Court rejects Plaintiff’s contention that the Sikes Act does not apply because BASH

programs could not have been addressed in the agency’s Integrated Natural Resources

Management Plan.

The Air Force Reasonably Awarded the Requirement to USDA-WS Rather than

Conducting a Full and Open Competition

Plaintiff asserts that Defendant violated the Competition in Contracting Act of 1988

(“CICA”), 10 U.S.C. § 2304, and its implementing regulations, FAR 6.303–2, by seeking a

proposal from USDA-WS instead of conducting a full and open competition. However, CICA

does not apply “in the case of procurement procedures otherwise expressly authorized by statute .

. . .” 10 U.S.C. § 2304(a)(1). Further, “the head of an agency may use procedures other than

competitive procedures” if “a statute expressly authorizes or requires that the procurement be made

through another agency or from a specified source[.]” § 2304(c)(5).

Here, another statute, the Sikes Act, expressly authorizes the procurement of the BASH

services at issue “through another agency.” The Sikes Act imposes mandatory conditions an

agency must follow in implementing and enforcing its Integrated Natural Resources Management

Plans. The Act exempts procurements of services necessary for the implementation of such Plans

from OMB Circular A-76, which mandates a cost comparison analysis before an agency may

insource work. The Sikes Act also requires that the agency give “priority” to acquiring such

services from a Federal agency that is charged with managing or conserving wildlife. 16 U.S.C.

§ 670a(d)(2). USDA-WS is a Federal agency responsible for conservation or management of fish

and wildlife, including birds. See Memorandum Of Understanding Between USDA and United

10

States Department of the Interior, Fish and Wildlife Service, located at

https://www.fws.gov/migratorybirds/pdf/management/mouaphis.pdf (last visited Feb. 8, 2018).10

The Air Force, in accordance with the Sikes Act’s mandate, gave “priority” to USDA-WS

to perform services necessary to “implement[] and enforce[]” Cannon AFB’s Integrated Natural

Resources Management Plan. USDA-WS agreed to: “[s]afely & professionally utilize approved

wildlife damage management tools/equipment,” “[i]dentify wildlife hazards to aircraft and human

safety at Cannon AFB,” “[p]rovide integrated pest management recommendations to Cannon AFB

on mitigating wildlife hazards to aircraft and human safety,” [p]rovide the nonlethal and lethal

control of wildlife to provide the safest air operations possible,” “[c]onduct operational wildlife

hazard management activities and wildlife surveys on at Cannon AFB to reduce avian and

mammalian wildlife hazards to aircraft and human safety,” and “[p]rovide training to Cannon AFB

personnel in identifying and managing wildlife hazards at the facility.” AR 502-03. Such services

directly implement Cannon AFB’s Integrated Natural Resources Management Plan and are

covered by the Sikes Act and exempt from CICA’s requirement for full and open competition. See

10 U.S.C. § 2304(a)(1), (c)(5). Accordingly, the Air Force properly awarded the work to USDA-

WS.

Plaintiff further argues that the Air Force erred by failing to support its decision with a

written justification and approval. While the record does not contain a formal justification and

approval, the record is replete with evidence that the Air Force considered the Sikes Act in its

deliberations, and ensured that an agency charged with managing wildlife was capable of

providing BASH services here. See AR 203, 207, 232, 275, 277, 439. In the June 20, 2014 Sikes

Act Implementing Procedures Memorandum, the Department of Defense “reminded” the Military

Departments that the Sikes Act mandates that “priority shall be given to . . . Federal and State

agencies having responsibility for the conservation or management of fish and wildlife” when

“contracting for services to implement the provisions of an INRMP.” AR 105 (emphasis in

original) (internal quotation marks omitted). The Air Force’s decision in this case reflects formal

DoD policy, and the agency’s rationale in support of its decision is clearly discernable from the

record and objectively reasonable. The Court will “uphold a decision of less than ideal clarity if

the agency’s path may reasonably be discerned.” Bowman Transp., 419 U.S. at 286. Accordingly,

in the situation here, while a written decision would have been better procurement practice, its

absence is not fatal. See RN Expertise, Inc. v. United States, 97 Fed. Cl. 460, 471-72 (2011) (lack

of required justification not a basis to grant protest absent demonstration that if such a justification

had been written there was a “substantial chance” it would have resulted in a contrary

determination by the agency).

The Air Force Reasonably Awarded the Work to USDA-WS Without Considering

the Comparative Cost of A Private Contractor Performing Those Services

In the alternative, Plaintiff contends that the Sikes Act requires the agency to consider cost

when procuring services implementing its Integrated Natural Resources Management Plan. In

lodging this argument, Plaintiff invokes the following provision of the Act:

10

At Defendant’s request, the Court takes judicial notice of this Memorandum pursuant to

F.R.E. 201.

11

With regard to the implementation and enforcement of integrated natural resources

management plans agreed to under subsection (a) of this section—

(1) neither Office of Management and Budget Circular A-76 nor any

successor circular thereto applies to the procurement of services that are

necessary for that implementation and enforcement; and

(2) priority shall be given to the entering into of contracts for the

procurement of such implementation and enforcement services with Federal

and State agencies having responsibility for the conservation or

management of fish or wildlife.

16 U.S.C. § 670a(d). According to Plaintiff, “priority” means only that work should be awarded

to a qualifying government agency if “all other things” are “relatively equal.” Pl.’s Resp. 5. In

Plaintiff’s view, all other things were not equal here, as Plaintiff allegedly would have performed

the same work at approximately two-thirds of the price, requiring that USDA-WS should not have

been granted “priority.” Id. Plaintiff warns that absent its interpretation of the Act, Defendant

would be permitted to award a contract to another agency even if that agency “charged ten times

as much as the private contractor” or “the private contractor was five times better at providing the

service than the government agency.” Id. at 6.

Plaintiff’s argument is premised on a gloss to the statutory language that is not there. There

is no requirement in the statute that an agency do a cost comparison in granting priority to a Federal

agency charged with management of wildlife and land resources. In contrast, the same section of

the statute that uses the term “priority” expressly exempts the agency from conducting the cost-

comparison analysis required by OMB Circular A-76. 16 U.S.C. § 670a(d).11 This exemption

from OMB Circular A-76 would be meaningless if the Sikes Act could nonetheless be construed

to require the agency to compare cost of its performance with that of the private sector.

Accordingly, the Court rejects Plaintiff’s alternative argument that the agency was required to

consider comparative costs under the Sikes Act.12

Loomacres is Not Entitled to Injunctive Relief

In order to obtain a permanent injunction, a protestor must show that: (1) it has actually

succeeded on the merits; (2) it will suffer irreparable harm if such relief is not granted; (3) the

11

OMB Circular A-76 provides that “agencies and public reimbursable sources shall

calculate cost estimates” to reflect the full cost of performance by the government. OMB Circular

A-76, C-1.

12

Plaintiff also cites the Economy Act, 31 U.S.C. § 1535, and 10 U.S.C. § 2463 as bases for

its protest. Plaintiff has not established a violation of either statute. See Savantage Fin. Servs.,

Inc. v. United States, 123 Fed. Cl. 7, 38-39 (2015) (the Economy Act and its implementing

regulations at 48 C.F.R. § 17.5 do not apply “where one executive agency [] is acquiring goods or

services directly from another executive agency”). 10 U.S.C. § 2463 requires DoD to “devise and

implement guidelines” to consider if it is appropriate for “[DoD] civilian employees” to perform

“new functions and functions that are performed by contractors . . . .” This provision is not relevant

to the situation here.

12

balance of the hardships tips in the protestor’s favor; and (4) an injunction will serve the public

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

Loomacres’ protest fails on the merits, the Court need not consider the other factors. See Sci.

Applications Int’l Corp. v. United States, 108 Fed. Cl. 235, 283 (Fed. Cl. 2012) (“In that [plaintiff]

has not prevailed on the merits of its substantive claims, the first hurdle prerequisite to injunctive

relief, inquiry is over.”). Accordingly, Loomacres’ request for injunctive relief is denied.

Conclusion

Plaintiff’s motion to supplement the Administrative Record is GRANTED.

Defendant’s motion for judgment on the Administrative Record is GRANTED, and

Plaintiff’s motion for judgment on the Administrative Record is DENIED. The Clerk is directed

to enter judgment on the Administrative Record in favor of Defendant.

s/Mary Ellen Coster Williams

MARY ELLEN COSTER WILLIAMS

Judge

13

Appendix A

Air Force Instruction 32-7064

In Air Force Instruction 32-7064, dated November 18, 2014, governing Integrated Natural

Resources Management Plans for Air Force installations, the Secretary of the Air Force set forth

specific activities—including BASH programs—that had to be addressed in Air Force installation

Integrated Natural Resources Management Plans:

15.1. Bird/Wildlife Aircraft Strike Hazard (BASH) Program. The focus of the

BASH program is to prevent wildlife-related aircraft mishaps and reduce the

potential for wildlife hazards to aircraft operations. Accomplishing this goal

requires knowledgeable natural resources management on and adjacent to

installation airfields. Installation natural resources management activities must

comply with the requirements of AFI 91-202, The US Air Force Mishap Prevention

Program, AFI 91-204, Safety Investigations and Reports, and AFPAM 91-212,

BASH Management Techniques. AFCEC/CO and the Air Force Safety Center

(AFSEC/SEFW) provide technical assistance to installations on BASH issues. (T-

1).

15.1.1. The installation Integrated Natural Resources Management Plan

must support the BASH Plan. The INRMP must address habitat

management techniques that can reduce the potential for wildlife hazards to

aircraft operations. The BASH Plan must be referenced in the INRMP. A

BASH Plan designated For Official Use Only (FOUO) is exempted from

public review, but must be available to the USFWS and state wildlife

agency upon request. (T-1).

15.1.2. Natural resources personnel will assist the installation flight safety

office and others in the development and implementation of the BASH Plan.

Natural resource personnel will assist the flight safety office in providing

oversight to external agencies or contractors involved in the implementation

of the BASH program on Air Force property. (T-1).

15.1.3. The installation natural resources manager must be an active

member of the installation Bird/wildlife Hazard Working Group (BHWG).

(T-1).

15.1.4. Installations will establish procedures for coordination and review

of construction and infrastructure improvement projects (e.g. landscaping,

waste water treatment, golf courses etc.) to ensure that any BASH related

impacts are considered. (T-1).

15.2. Natural Resources Management in the Airfield Environment. All aspects

of installation natural resources management must be reviewed for potential

wildlife hazards to aircraft operations. The land adjacent to aircraft operations areas

must be managed to minimize attractions to wildlife. Refer to Federal Aviation

Administration Advisory Circular 50/5200- 33B, Hazardous Wildlife Attractants

14

on or Near Airports for guidance on identifying land uses near airfields that have

the potential to attract hazardous wildlife. (T-1).

* * *

15.3. Management of Wildlife in Support of the BASH Plan. The INRMP must

evaluate both existing and potential wildlife hazards to aircraft operations.

Although the Air Force Safety Center is responsible for the overall AF BASH

program, natural resources and pest management personnel are an integral part of

every installation BASH program. Natural resources managers must share

information on biological resources and habitat conditions with the installation

safety office to facilitate the development of a comprehensive BASH program. (T-

1).

AR 158-59.

15

Appendix B

The Cannon AFB Integrated Natural Resources Management Plan

The following is the Court’s summary of relevant excerpts from the Cannon AFB

Integrated Natural Resources Management Plan.

The Cannon AFB Integrated Natural Resources Management Plan is “a long-term planning

document that guides implementation of the natural resources program to help ensure support for

the installation mission, while protecting and enhancing natural resources and providing a variety

of outdoor recreational opportunities for station personnel.” AR 527. Pursuant to the Sikes Act,

Cannon AFB’s Integrated Natural Resources Management Plan was prepared “in cooperation with

the Secretary of the Department of Interior, acting through the Director of the U.S. Fish and

Wildlife Services (USFWS), and the New Mexico Department of Game and Fish (NMDGF).” Id.

The Integrated Natural Resources Management Plan sets out “[t]hirteen resource-specific

natural resources program elements [that] have been developed to address relevant issues,” and

describes “[e]xisting conditions, baseline survey data, current management practices, and

recommended management actions . . . .” Id. Among the “[m]anagement program elements

covered in” the Integrated Natural Resources Management Plan is “Bird Aircraft Strike Hazard

(BASH).” Id.

Cannon AFB’s Integrated Natural Resources Management Plan defines BASH as:

the threat of aircraft collision with birds during flight operations. Although most

bird strikes do not result in aircraft damage, some strikes have led to major damage

and/or serious aircraft accidents. According to Bird Strike Committee USA, bird

and other wildlife (primarily mammals) strikes result in over $600 million in

damage to U.S. and civilian air traffic every year. To date, more than half of the

strikes are reported at low flight altitudes (<100 ft); however, strikes have occurred

up to 37,000 ft (AirSafe 2009). Military aircraft used by AFSOC may be more

vulnerable than other DoD aircraft because many AFSOC missions require flying

at low altitudes.

AR 590.

Section 7 of Cannon AFB’s Integrated Natural Resources Management Plan, which

“describes the natural resources and land management programs . . . and the implementation of the

INRMP[,]” explains that “[c]urrently, [Cannon] AFB has a BASH program for which the primary

focus is to determine the wildlife hazards present on [Cannon] AFB and [Melrose] AFR and how

to mitigate them.” AR 595, 611.

Section 7.12.1 of Cannon AFB’s Integrated Natural Resources Management Plan

highlights particular challenges the agency faces regarding bird strikes at Cannon AFB, including

aircraft take-off and landings, urban pest species, such as pigeons, dove, and blackbirds, which

flock in high numbers and are susceptible to collisions, raptors, and the large prairie dog population

which attracts these birds. Id.

16

Section 7.12.1 includes a table setting out the management strategies the agency developed

for addressing the specific challenges at Cannon AFB:

Id.

Section 8 of Cannon AFB’s Integrated Natural Resources Management Plan provides that

“[t]his INRMP is focused on the achievement of nine specific goals, broken down into the natural

resources elements discussion in Section 7, for the protection and improvement of the natural

environment.” AR 615. Goal 7 is to “Reduce Wildlife Aircraft Strike Hazards for Cannon Air

Force Base and Melrose Air Force Range,” and the specific objectives, along with projects to

support those objectives, are listed as:

Objective 7.1: Develop a wildlife hazard assessment for [Cannon] AFB and

[Melrose] AFR.

Project 7.1.1: Conduct wildlife hazard site assessments for

[Cannon] AFB and [Melrose] AFR.

Project 7.1.2: Develop a wildlife hazard assessment report that

details the results of the surveys and provides

practical and proven options for mitigating wildlife

hazards.

Objective 7.2: Implement a wildlife hazard management plan for CAFB

and MAFR.

Project 7.2.1: Develop a wildlife hazard management plan based

on historic wildlife strike data, existing wildlife

control, and current wildlife populations and threats.

AR 616-17.

17

Section 9 of Cannon AFB’s Integrated Natural Resources Management Plan is titled

“Implementation.” AR 619. Subsection 9.1 (“Projects”) provides:

during development of this INRMP goals have been developed, natural resources

management objectives defined, and legal drivers identified for [Cannon] AFB and

[Melrose] AFR. A list of projects necessary to meet these goals and objectives

were also developed. Detailed prescriptions including management actions, cost

estimates, funding classification, and an implementation schedule are in Section

9.3. The INRMP is considered implemented if the installation:

 Actively requests, receives, and uses funds for all Class 0 and Class 1

projects and activities;13

 Ensures that sufficient numbers of professionally trained natural resources

management staff are available to perform the tasks required by the INRMP;

 Coordinates annually with all cooperating offices; and

 Natural Resources program manger documents, in the form of ACES

projects, deliverables, and during the annual review process, specific

INRMP action accomplishments undertaken each year. In addition,

accomplishments are documented as a part of the annual review process.

Id.

Among the “list of projects necessary to meet” the goals set out in Cannon AFB’s

Integrated Natural Resources Management Plan are Project Nos. 2, 7, 8, and 9, which all relate to

migratory bird monitoring or BASH. Project No. 2 “proposes to continue annual breeding bird

surveys on established routes on [Cannon] AFB and [Melrose] AFR in support of wildlife

management.” AR 622. Project No. 7 “proposes to assess both [Cannon] AFB and [Melrose]

AFR for wildlife hazards as they relate to potential bird aircraft strike hazards.” AR 627.

Project No. 8, to “Update/Implement a Wildlife Hazard Management Plan,” requires a

comprehensive plan to detail the current risks and hazards associated with flight operations, and

establish procedures to handle and mitigate those risks reporting strikes. The plan can be adapted

to incorporate air traffic control procedures if birds or other potential hazards are observed in the

area, as well as use of AHAS or other “real-time” detection procedures. AR 628.

Project No. 9 proposes to assess the current population of black-tailed prairie dogs on

Cannon AFB, and burrowing owls, a protected species, that pose a risk to aircraft operations as

they attract large raptor species. AR 629. Project Nos. 7, 8, and 9 all cite the Sikes Act and

provisions of AFI 32-7064 pertaining to BASH-services as their “Legal Drivers.” AR 627-29.

13

“Class 0” (“Recurring Natural Resources Conversation Management Requirements”) and

“Class 1” (“Current Compliance”) projects are defined in Subsection 9.2. AR 619.

18