Opinion

Stg LLC v. United States

Court: United States Court of Federal Claims
Filed: Apr 28, 2020
Status: Published
Cited by: 0 cases
Authority: More cited than 11.5%

“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970

How later courts described this case

“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970
“The court recognizes that the agency possesses wide discretion in the application of procurement regulations.”
“The court ‘is not empowered to substitute its judgment for that of the agency,’ and it must uphold an agency’s decision against a challenge if the ‘contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’” (internal citations omitted
“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 20-283C

Filed: April 11, 2020

Redacted Version Issued for Publication: April 28, 20201

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

STG LLC, *

Protestor, *

v. *

UNITED STATES, *

* Post-Award Bid Protest; Override

Defendant, *

SCIENCE APPLICATIONS *

INTERNATIONAL CORP., *

Defendant-Intervenor. *

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

Jamie F. Tabb, Vinson & Elkins LLP, Washington, DC, for protestor. With him was

Tyler Robinson, Elizabeth Krabill McIntyre, and John Satira, Vinson & Elkins LLP,

Washington, DC.

Amanda L. Tantum, Senior Trial Counsel, Commercial Litigation Branch, Civil

Division, Department of Justice, Washington, DC, for defendant. With her were Douglas

K. Mickle, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr.,

Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant Attorney General,

Civil Division. Of counsel was Major Abraham Young, Trial Attorney, United States Legal

Services Agency.

James McCullough, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington,

DC, for intervenor. With him was Michael Anstett, Fried, Frank, Harris, Shriver &

Jacobson LLP, Washington, DC.

1 This Opinion was issued under seal on April 11, 2020. 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].”

OPINION

HORN, J.

In the above-captioned bid protest, protestor STG LLC (STG), challenges the

decision of the United States Army Communication Information Systems Activity – Pacific

(the Army) to override the automatic stay of performance required by the Competition in

Contracting Act (CICA), 31 U.S.C. § 3553 (2018), upon protestor’s filing of a bid protest

at the United States Government Accountability Office (GAO) challenging the Army’s

award of a task order to defendant-intervenor Science Applications International Corp.

(SAIC).2

FINDINGS OF FACT

On August 21, 2019, the Army issued a request for proposals (RFP) for a task

order under the Information Technology Enterprise Solutions-3 Services Indefinite

Delivery/Indefinite Quality contract. The task order sought mission command network

operations and maintenance services, including IT support personnel expertise for the

mission, focused mainly in South Korea, with “additional U.S. and ROK [Republic of

Korea] military locations as identified by the Government as required and during the

yearly two major events/[redacted].” As indicated in the contracting officer’s March 3,

2020 Determination & Findings:

The incumbent Army CHESS ITES-2S Task Order W91 QUZ-06-D-0012-

F406 was awarded to General Dynamics Information Technology (GDIT)

on 26 August 2016 under FAR 16.505 Fair Opportunity to Compete

procedures using a Lowest Price Technically Acceptable (LPTA) source

selection methodology. The current contract is comprised of a base year

inclusive of a one month phase-in, two (2) 12-month option periods, and a

final 8½ month option period.

(capitalization in original). Per the terms of the contract, the contract for the incumbent

contractor, GDIT, is scheduled to end on April 12, 2020.

On January 24, 2020, the Army awarded the task order to SAIC,3 and the same

day, January 24, 2020, the Army notified STG that SAIC had been awarded the task

order. STG requested a debriefing, and the Army provided written materials on February

3, 2020, provided an oral debriefing on February 5, 2020, and on February 13, 2020, the

Army responded to STG’s additional written questions by letter. During the debriefing

process, the contracting officer provided STG with the following chart regarding the

evaluation of STG and SAIC’s proposals:

2On April 6, 2020, the court issued an oral decision the parties. The decision, and this

written Opinion, is limited only to the issue of the Army’s override decision, and not the

merits of Army’s evaluation and award to SAIC.

3 SAIC is scheduled begin contract performance on April 13, 2020.

Factor Sub-Factor STG LLC SAIC

Factor 1: Technical Approach

Subfactor1.1

C2BaselineEnterpriseServices [redacted] Good

Subfactor1.2

C2Above-BaselineServices [redacted] Acceptable

Factor 1 - Overall [redacted] Good

Factor 2: Management Approach

Subfactor2.1

Management Plan [redacted] Acceptable

Subfactor2.2

Organizational Chart [redacted] Acceptable

Subfactor2.3

Staffing Plan [redacted] Good

Subfactor2.4

Adherence to applicable [redacted] Acceptable

regulations and publications

Sub-factor 2.5

Phase-in Transition Plan (PITP) [redacted] Good

Sub-factor 2.6

Quality Control (QC) Plan (QCP) [redacted] Good

Factor 2 - Overall [redacted] Good

Factor 3 – Mission Operation Support

Sub-factor 3.1

Operational Plan for C2 Systems [redacted] Good

O&M

Sub-factor 3.2

C2 IT O&M Support Experience [redacted] Acceptable

using ITIL

Factor 3 - Overall [redacted] Good

Factor 4: Prime Contractor’s Prior Experience [redacted] Good

[redacted] Satisfactory

Factor 6: Past Performance Confidence

Factor 5: Price

Total Evaluated Price CLINs X001, X002, X003, X004,

X005, X006, X007, X008, X009, X010, X014, X016, [redacted] $70,963,728.92

0017, 4017

Total Evaluated Price + 52.217-8

CLINs X001, X002, X003, X004, X005, X006, X007, [redacted] $80,309,273.97

X008, X009, X010, X014, X016, 0017, 4017

Grand Total Awarded Price (All Years + Including

$98,684,273.97

52.217-8 (ALL CLINs)

Robert M. Minjack, the contracting officer, also explained to STG that “[t]he award was

made in strict conformation with the award criteria delineated in the solicitation,” and

“award was made to SAIC because their proposal was determined to be the Best Value

in accordance with solicitation evaluation terms and conditions.”

Subsequently, STG filed its protest at the GAO on February 18, 2020.4 STG’s GAO

protest argued

[redacted] while SAIC’s total evaluated price was [redacted] higher, than

STG’s price. Nonetheless, the Army decided to award the Task Order to

SAIC, depriving taxpayers of the [redacted] savings offered by STG. The

Army’s award of the Task Order to SAIC was the result of a deeply flawed

selection decision by the Agency’s Source Selection Authority (“SSA”) that

deviated from several basic procurement rules, as well as an unreasonable

and irrational evaluation conducted by the Agency’s Technical Evaluation

Board (“TEB”). All of these errors were highly prejudicial to STG, and as a

result, GAO should sustain the protest.

(capitalization in original). On February 21, 2020, Mr. Minjack sent SAIC a letter,

suspending performance of the awarded task order due to the CICA stay. Mr. Minjack

contacted GDIT to discuss the possibility of a bridge contract. Although the Army offered

a bridge contract to GDIT, on February 27, 2020, GDIT indicated to Mr. Minjack that, “after

careful consideration, GDIT cannot accept an additional 120 days sole source contract

with the same onerous terms and price.”

Thereafter, on March 3, 2020, the Army issued a Determination & Findings. In the

Determination & Finding the contracting officer concluded that the “[o]verride of the stay

and continued performance of the contract is necessary because it is in the best interests

of the United States based upon mission essential reasons which are urgent and

compelling, that will not permit waiting for a decision in the protest.”

The contract performance directly supports the Operations and

Maintenance of the Combined Enterprise Regional Information Exchange

System (CENTRIXS) Korea (K) and the Secret Internet Protocol Router

Network (SIPR). [redacted].

CENTRIXS-K is the U.S. and Korean classified coalition network that

enables information sharing through the use of email and web services,

chat, voice over internet protocol and GCCS-J [Global Command and

Control System – Joint] systems. GCCS-J is the C41 system that fuses

command and control capabilities into a comprehensive, interoperable

system by exchanging imagery, intelligence, status of forces, and planning

information. GCCS-J is the principal foundation for dominant battlespace

awareness, providing an integrated, near real-time picture of the

battlespace necessary to conduct joint and multinational operations. It

offers vital connectivity to the systems the joint warfighter and coalition

forces use to plan, execute, and manage military operations. This includes

the systems that provide the vital Common Operational Picture and

4The case number at GAO for STG’s protest is B-418490.1. As of April 6, 2020, the date

of the court’s oral decision in the above captioned protest, GAO had not issued a decision

on STG’s protest.

Intelligence sharing databases. Any delay in the execution of the

procurement would jeopardize the mission and eventually lead to overall

failure.

(capitalization in original). In the Determination & Findings, the contracting officer

explained:

Basis for Override of the Stay: Override of the stay and continued

performance of the contract is necessary because it is in the best interests

of the United States based upon mission essential reasons which are urgent

and compelling, that will not permit waiting for a decision in the protest.

Prior to making the decision to authorize this override, the following were

considered:

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

stay is not overridden;

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

adequately address the circumstances presented;

(3) how the potential cost of proceeding with the override, including the

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

compare to the benefits associated with the approach being considered for

addressing the agency's needs; and

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

procurement system.

(emphasis and capitalization in original).

For the first factor, the Determination & Findings stated:

It is imperative that continued performance for National Security is

unimpeded. No other reasonable alternatives to the override exist.

USACISA mission supported by the contract performance directly sustains

the Operations and Maintenance and Cybersecurity of the Combined

Enterprise Regional Information Exchange System (CENTRIXS) Korea (K)

and the Secret Internet Protocol Router Network (SIPR). [redacted]. This is

an enormous mission capability to take on without any type of transition or

for a very short period contract.

[redacted] Failure to approve the CICA Stay Override will put National

Defense, National Security and Allied missions in grave jeopardy of certain

failure.[5]

(capitalization in original). Regarding the second factor, the contracting officer explained

that no reasonable alternatives exist, first, because the Amy cannot perform the

operations itself because it does “[redacted] in order to provide the required quality and

level of support.” Second, the contracting officer explained, the Army’s contract with the

incumbent contractor GDIT cannot be extended because the contract does not have any

remaining option periods, and, moreover, GDIT refused an offer of a bridge contract under

the current terms of its contract. Additionally, the contracting officer explained

there is significant evidence to demonstrate that GDIT is not able to

satisfactorily perform the required services even though they are the

incumbent. The documented past performance ratings in CPARS base

through the option 2 performance periods for the incumbent contractor have

been marginal and the Government has indicated we would not recommend

them for this work in the future. (See attached CPARS for Base, Option 1

and Option 2). Specific critical performance issues include, but are not

limited to, not maintaining the network readiness at [redacted] which is the

required minimum level, numerous key personnel vacancies which were not

filled within the timeframes of the contract terms and conditions and less

than minimal overall staffing to provide the required quality and level of

support. The marginal performance has continued into the current option

period. The incumbent contractor continues to degrade their performance,

which cannot likely be overcome, to the point where Government

5 The March 3, 2020 Mission Impact Statement included with the Determination &

Findings explained:

Any delay in the execution of the Cybersecurity, Network Operations &

Maintenance of Information Technology Support (CNO&MITS) contract with

SAIC will result in a [redacted] lapse of contractor operations and

maintenance support for the Combined Enterprise Regional Information

Exchange System - Korea (CENTRIXS-K) and the Secret Internet Protocol

Router Network (SIPR) network throughout the Korean Peninsula beyond

12 April 2020. The Army cannot continue to suspend performance of the

contract and await the issuance a protest decision because doing so would

have a severe adverse impact on U.S. Forces and their ability to meet the

armistice and contingency missions. An override of the current CICA is in

the best interest of the United States based on the following urgent and

compelling needs that directly impact the mission critical requirements

supporting National Defense, National Security and Allied support related

to the defense of the Korean Peninsula.

(capitalization in original).

augmentations had to be made in order to provide the minimum support

required. There also have been multiple Contract Deficiency Reports

(CDRs), due to continued understaffing impacting performance for the

Operations and Maintenance of the networks. The incumbent's staffing

levels have decreased significantly in the past 9 months and continue on a

downward trend more rapidly in the past 3 months due to the pending and

eventual contract award. The incumbent’s staff not hired or pending to be

hired by awardee are moving or have already moved to other positions or

jobs. If the incumbent is awarded a sole source bridge contract, there is little

evidence that they will be able to re-obtain the required qualified personnel

in short order and therefore a high risk of adverse consequences and of

imminent failure of all aforementioned missions described above.

Accordingly, I find that these options are not reasonable alternatives to a

CICA Stay Override.

(capitalization in original). Regarding the third factor, the contracting officer noted that “[i]f

GAO were to sustain the protest, the Army might incur costs that are more than de minimis

depending on the corrective action required and taken. However, this is an acceptable

risk given the serious consequences of stayed performance for this contract action.” The

Determination & Findings concluded: “Therefore, I find that the benefits of overriding the

stay and proceeding with performance greatly outweigh the potential costs of not doing

so.” For the fourth factor the contracting officer stated in the Determination & Findings:

Although ACC [the Army] recognizes the important role of the GAO protest

process in the procurement review process and respects the automatic stay

provisions found in FAR 33.104. However, FAR expressly permits an

agency to override this stay in limited instances, where, as here, an agency

has urgent and compelling reasons for an override. ACC-411th CSB

[Contracting Support Brigade] has explored alternative means to meet the

requirement but found none that were acceptable. The urgent need will be

met through the performance of the contract awarded to SAIC. This includes

the 2 months phase-in period from 13 February 2020 to 12 April 2020 and

then full performance for up to 9.5 months to 31 January 2021 to meets an

immediate, critical mission need. In short, overriding the stay is not only

consistent with the specific rules and regulations of our acquisition system,

but is also consistent with its overarching principles of competition and

integrity.

(capitalization in original). The contracting officer concluded in the Determination &

Findings:

Based upon a review of the protest, the Mission Impact Statement, the

Legal Memorandum, the supporting documents, and the above findings, I

hereby endorse the findings recounted in the above pages, because the

best interests of the United States based upon mission essential reasons

which are urgent and compelling, will not permit waiting for a decision

concerning the protest.

On March 12, 2020, protestor filed the override protest in this court. Protestor

argues “[t]he Army’s decision to override the stay of performance of the task order is

arbitrary and capricious and contrary to law,” claiming that “the Army’s D&F

[Determination & Findings] appears to pay lip service to each of the Court’s identified

factors, but provides no evidence that the Army reasonably applied those factors in

reaching its decision to override the stay of performance.” Protestor complaint continued:

“Instead, the Army’s override decision appears to be based only on generic, unsupported

statements that the factors were considered and that the Army’s decision was consistent

with those questions.” Therefore, protestor claims, “the Army’s decision to allow

performance of the awarded task order to proceed is arbitrary and capricious,

unreasonable, and contrary to law.” The next day, March 13, 2020, the court held an initial

hearing with the parties, and the parties and the court agreed to proceed on an expedited

schedule for the above captioned protest with the parties filing cross-motions for judgment

on the Administrative Record. On April 6, 2020, the court issued an oral decision at a

hearing with the parties indicating to the parties the override would be sustained, thus

granting defendant and intervenor’s motions for judgment on the Administrative Record

and denying protestor’s motion for judgment on the Administrative Record. This Opinion

incorporates and memorializes the April 6, 2020 oral decision issued to the parties.

DISCUSSION

Initially, defendant argues “STG cannot establish that it is an interested party with

standing to assert a challenge to the override.” Protestor responds that “STG has standing

to bring this CICA override challenge. Given the development of CICA override case law

at the Court, this should go without saying.”

The Tucker Act grants the United States Court of Federal Claims

jurisdiction to render judgment on an action by an interested party objecting

to a solicitation by a Federal agency for bids or proposals for a proposed

contract or to a proposed award or the award of a contract or any alleged

violation of statute or regulation in connection with a procurement or a

proposed procurement.

28 U.S.C. § 1491(a)(1) (2018). In order to have standing to sue as an “interested party”

under this provision, a disappointed bidder must show that it suffered competitive injury

or was “prejudiced” by the alleged error in the procurement process. See Todd Constr.,

L.P. v. United States, 656 F.3d 1306, 1315 (Fed. Cir. 2011) (To prevail, a bid protester

must first “‘show that it was prejudiced by a significant error’ (i.e., ‘that but for the error, it

would have had a substantial chance of securing the contract).’” (quoting Labatt Food

Serv., Inc. v. United States, 577 F.3d 1375, 1378, 1380 (Fed. Cir. 2009))); see also Blue

& Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1317 (Fed. Cir. 2007); Sci.

Applications Int’l Corp. v. United States, 108 Fed. Cl. 235, 281 (2012); Linc Gov’t Servs.,

LLC v. United States, 96 Fed. Cl. 672, 693 (2010) (“In order to establish standing to sue,

the plaintiff in a bid protest has always needed to demonstrate that it suffered competitive

injury, or ‘prejudice,’ as a result of the allegedly unlawful agency decisions.” (citing Rex

Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006); Statistica, Inc. v.

Christopher, 102 F.3d 1577, 1580-81 (Fed. Cir. 1996); Vulcan Eng’g Co. v. United States,

16 Cl. Ct. 84, 88 (1988); and Morgan Bus. Assocs., Inc. v. United States, 223 Ct. Cl. 325,

332 (1980))). In order to establish what one Judge on this court has called “allegational

prejudice” for the purposes of standing, the bidder must show that there was a “substantial

chance” it would have received the contract award, but for the alleged procurement error.

See Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 675; Hyperion, Inc. v. United

States, 115 Fed. Cl. 541, 550 (2014) (“The government acknowledges that proving

prejudice for purposes of standing merely requires ‘allegational prejudice,’ as contrasted

to prejudice on the merits . . . .”); Bannum, Inc. v. United States, 115 Fed. Cl. 148, 153

(2014); see also Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005);

Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied

(Fed. Cir. 2004); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); Statistica, Inc. v. Christopher,

102 F.3d at 1581; Archura LLC v. United States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp.

of Am. v. United States, 108 Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional

issue, this showing of prejudice is a threshold issue. See Corus Grp. PLC. v. Int’l Trade

Comm’n, 352 F.3d 1351, 1357 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc.

v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002).

In a post-award bid protest, such as the above-captioned bid protest, the “protestor

must ‘establish that it (1) is an actual or prospective bidder, and (2) possesses the

requisite direct economic interest.’” Mgmt. & Training Corp. v. United States, 137 Fed. Cl.

780, 783-84 (2018) (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.

Cir. 2006)); see also Digitalis Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384

(Fed. Cir. 2012) (quoting MCI Telecomms. Corp. v. United States, 878 F.2d 362, 365

(Fed. Cir. 1989)); Timberline Helicopters, Inc. v. United States, 140 Fed. Cl. 117, 120

(2018); Contract Servs., Inc. v. United States, 104 Fed. Cl. 261, 269 (2012).

Although “standing is not often discussed at length in CICA stay override cases,”

see PMTech, Inc. v. United States, 95 Fed. Cl. 330, 348 (2010), several Judges on the

United States Court of Federal Claims have found that, by bidding on a procurement

which was stayed pending a protest at the GAO, a protestor has enough of a direct

economic interest in the stayed procurement and has standing to challenge an override

of the CICA stay in this court. See Supreme Foodservice GmbH v. United States, 109

Fed. Cl. 369, 381 (2013) (evaluating the standing of a protestor challenging an override

of the CICA stay and stating that, “[a]s an actual offeror challenging the award of a

contract before the GAO, there is no question that Supreme [the protestor] is an interested

party for purposes of our court’s jurisdiction”); URS Fed. Servs., Inc. v. United States, 102

Fed. Cl. 664, 670 (2011) (determining that a protestor had standing to challenge an

override of a CICA stay implemented in connection with a bid protest at the GAO when

the protestor had bid on the solicitation at issue at the GAO, notwithstanding that the

protestor was not the incumbent contractor), recons. denied, 102 Fed. Cl. 674 (2012);

PMTech, Inc. v. United States, 95 Fed. Cl. at 348; Sierra Military Health Servs., Inc. v.

United States, 58 Fed. Cl. 573, 579 (2003).

In the above-captioned bid protest, STG submitted a proposal in response to the

RFP at issue in STG’s post-award bid protest at the GAO. Pursuant to CICA, performance

of the contract awarded to SAIC following the Army’s evaluation of proposals received in

response to the RFP was stayed until the Agency decided to override the CICA stay.

Therefore, STG, as an actual offeror, has a direct economic interest in the resultant

contract issued under the Army’s RFP and has standing in the above-captioned bid

protest to challenge the Army’s override of the CICA stay implemented when STG filed

its protest at the GAO. See Supreme Foodservice GmbH v. United States, 109 Fed. Cl.

at 381; URS Fed. Servs., Inc. v. United States, 102 Fed. Cl. at 670.

In the above-captioned bid protest, STG challenges the Army’s decision to override

the CICA stay that was implemented in connection with STG’s bid protest at the GAO. In

protestor’s motion for judgment on the Administrative Record, protestor argues that the

Army “acted arbitrarily and capriciously and contrary to law in overriding the mandatory

stay of performance.” In response, intervenor argues that “[t]he administrative record

demonstrates the reasonableness of the Army’s decision to override the stay of contract

performance, notwithstanding STG’s timely-filed GAO protest,” and defendant argues

that the Army “rationally determined that an override was in the best interests of the United

States based upon mission essential reasons which are urgent and compelling, that

would not permit waiting for a decision in the GAO protest.” 6

The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,

§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)–(4)),

amended the Tucker Act to establish a statutory basis for bid protests in the United States

Court of Federal Claims. See Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d 1324, 1330-32 (Fed. Cir. 2001); see also Sys. Application & Techs., Inc.

v. United States, 691 F.3d 1374, 1380 (Fed. Cir. 2012) (explaining that the Tucker Act

expressly waives sovereign immunity for claims against the United States in bid protests).

The statute provides that protests of agency procurement decisions are to be reviewed

under APA standards, making applicable the standards outlined in Scanwell Labs., Inc.

v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases following that decision.

6 Defendant, in its motion for judgment on the Administrative Record, also argues that

“STG repeatedly insinuates that the Army acted in bad faith in deciding to override the

D&F and that the D&F contains falsehoods,” but “STG makes no attempt to provide the

required proof for such claims, demonstrating their complete lack of foundation.” Protestor

responds that “[c]ontrary to the Defendant’s assertions, STG has not argued and does

not here argue that any Government official has acted in bad faith,” and argues that when

a protestor “challenges the decisions made by agency officials, points out that their

findings are unsupported by the record, and argues that their decisions do not meet the

requirements of reasonable decision-making under the Administrative Procedure Act, it

does not mean a plaintiff has alleged that the agency acted in bad faith.” Therefore,

protestor argues that “the Court need not consider this tangential argument further.” The

court agrees with protestor.

See, e.g., Per Aarsleff A/S v. United States, 829 F.3d 1303, 1309 (Fed. Cir. 2016)

(“Protests of agency procurement decisions are reviewed under the standards set forth

in the Administrative Procedure Act (‘APA’), see 28 U.S.C. § 1491(b)(4) (citing 5 U.S.C.

§ 706), ‘by which an agency’s decision is to be set aside only if it is arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law[.]’” (quoting NVT Techs.,

Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)) (citing PAI Corp. v. United

States, 614 F.3d 1347, 1351 (Fed. Cir. 2010))); Impresa Construzioni Geom. Domenico

Garufi v. United States, 238 F.3d at 1332; Res. Conservation Grp., LLC v. United States,

597 F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District

of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held

that challenges to awards of government contracts were reviewable in federal district

courts pursuant to the judicial review provisions of the APA.”); Galen Med. Assocs., Inc.

v. United States, 369 F.3d 1324, 1329 (Fed. Cir. 2004) (citing Scanwell Labs., Inc. v.

Shaffer, 424 F.2d at 864, 868, for its “reasoning that suits challenging the award process

are in the public interest and disappointed bidders are the parties with an incentive to

enforce the law”); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351

(Fed. Cir. 2004) (“Under the APA standard as applied in the Scanwell line of cases, and

now in ADRA cases, ‘a bid award 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.’” (quoting Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v. United States, 316

F.3d at 1319.

When discussing the appropriate standard of review for bid protest cases, the

United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and

(2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United

States, 238 F.3d at 1332 n.5, but focused its attention primarily on subsection (2)(A). See

Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir.) (“‘[T]he proper standard

to be applied [to the merits of] bid protest cases is provided by 5 U.S.C. § 706(2)(A)

[(2006)]: a reviewing court shall set aside the agency action if it is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.”’” (alterations in original)

(quoting Banknote Corp. of Am. v. United States, 365 F.3d at 1350-51 (citing Advanced

Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir.), reh’g denied

(Fed. Cir. 2000)))), reh’g and reh’g en banc denied (Fed. Cir. 2013). The statute says that

agency procurement actions should be set aside when they are “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,” or “without observance of

procedure required by law.” 5 U.S.C. § 706(2)(A), (D) (2018);7 see also Tinton Falls

7 The language of 5 U.S.C. § 706 provides in full:

To the extent necessary to decision and when presented, the reviewing

court shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms

of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;

and

Lodging Realty, LLC v. United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech.,

Inc. v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United

States, 700 F.3d 1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions according to

the standards set forth in the Administrative Procedure Act; namely, for whether they are

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

(quoting 5 U.S.C. § 706(2)(A); and Bannum, Inc. v. United States, 404 F.3d at 1351));

Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010);

Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res.

Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and

capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue

& Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“‘[T]he inquiry

is whether the [government]’s procurement decision was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.”’” (quoting Bannum, Inc. v. United

States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000)))); NVT Techs., Inc. v.

United States, 370 F.3d at 1159 (“Bid protest actions are subject to the standard of review

established under section 706 of title 5 of the Administrative Procedure Act (‘APA’), 28

U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5

U.S.C. § 706(2)(A) (2000).” (internal citations omitted)); Info. Tech. & Applications Corp.

(2) hold unlawful and set aside agency action, findings, and conclusions

found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections

556 and 557 of this title or otherwise reviewed on the record of

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject

to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole

record or those parts of it cited by a party, and due account shall be taken

of the rule of prejudicial error.

5 U.S.C. § 706.

v. United States, 316 F.3d at 1319 (“Consequently, our inquiry is whether the Air Force’s

procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Synergy Sols., Inc. v. United

States, 133 Fed. Cl. 716, 734 (2017) (citing Banknote Corp. of Am. v. United States, 365

F.3d at 1350); Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Contracting,

Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 340 (2012). “In a bid protest

case, the agency’s award must be upheld unless it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v. United States,

645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d at 1351),

reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United

States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious] standard to bid

protests, our task is to determine whether the procurement official’s decision lacked a

rational basis or the procurement procedure involved a violation of a regulation or

procedure.” (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d at 1285–86));

Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.), reh’g

en banc denied (Fed. Cir. 2013); McVey Co., Inc. v. United States, 111 Fed. Cl. 387, 402

(2013) (“The first step is to demonstrate error, that is, to show that the agency acted in an

arbitrary and capricious manner, without a rational basis or contrary to law.”);

PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531-32 (“Stated another way, a

plaintiff must show that the agency’s decision either lacked a rational basis or was

contrary to law.” (citing Weeks Marine, Inc. v. United States, 575 F.3d at 1358)),

subsequent determination, 96 Fed. Cl. 119 (2010).

The United States Supreme Court has identified sample grounds which can

constitute arbitrary or capricious agency action:

[W]e will not vacate an agency’s decision unless it “has relied on factors

which Congress has not intended it to consider, entirely failed to consider

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

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

that it could not be ascribed to a difference in view or the product of agency

expertise.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see

also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358; F.C.C. v. Fox

Television Stations, Inc., 556 U.S. 502, 552 (2009); Ala. Aircraft Indus., Inc.-Birmingham

v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied

(Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency

tribunal must present a full and reasoned explanation of its decision. . . . The reviewing

court is thus enabled to perform meaningful review . . . .”); Textron, Inc. v. United States,

74 Fed. Cl. 277, 285-86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean

Technical Servs., Inc., 223 F. App’x 974 (Fed. Cir. 2007). The United States Supreme

Court also has cautioned, however, that “courts are not free to impose upon agencies

specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).

Under an arbitrary or capricious standard, the reviewing court should not substitute

its judgment for that of the agency, but should review the basis for the agency decision to

determine if it was legally permissible, reasonable, and supported by the facts. See Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of

review under the ‘arbitrary and capricious’ standard is narrow and a court is not to

substitute its judgment for that of the agency.”); see also Turner Constr. Co., Inc. v. United

States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322

(Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516

U.S. 916 (1995)); Synergy Sols., Inc. v. United States, 133 Fed. Cl. at 735 (citing Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33). “‘“If the

court finds a reasonable basis for the agency’s action, the court should stay its hand even

though it might, as an original proposition, have reached a different conclusion as to the

proper administration and application of the procurement regulations.”’” Weeks Marine,

Inc. v. United States, 575 F.3d at 1371 (quoting 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))); Limco Airepair, Inc. v. United States, 130 Fed. Cl. 544, 550 (2017)

(citation omitted); Jordan Pond Co., LLC v. United States, 115 Fed. Cl. 623, 631 (2014);

Davis Boat Works, Inc. v. United States, 111 Fed. Cl. 342, 349 (2013); Norsat Int’l

[America], Inc. v. United States, 111 Fed. Cl. 483, 493 (2013); HP Enter. Servs., LLC v.

United States, 104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United

States, 101 Fed. Cl. 765, 780 (2011).

Stated otherwise by the United States Supreme Court:

Section 706(2)(A) requires a finding that the actual choice made was not

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” To make this finding the court must consider whether the decision

was based on a consideration of the relevant factors and whether there has

been a clear error of judgment. Although this inquiry into the facts is to be

searching and careful, the ultimate standard of review is a narrow one. The

court is not empowered to substitute its judgment for that of the agency.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (internal citations

omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see

also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-7 (2001); Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), reh’g denied, 420 U.S. 956

(1975); Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir. 2018) (quoting

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“The

rational basis test asks ‘whether the contracting agency provided a coherent and

reasonable explanation of its exercise of discretion.’”); Co-Steel Raritan, Inc. v. Int’l Trade

Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004) (In discussing the “arbitrary, capricious,

and abuse of discretion, or otherwise not in accordance with the law” standard, the

Federal Circuit stated: “the ultimate standard of review is a narrow one. The court is not

empowered to substitute its judgment for that of the agency.”); In re Sang Su Lee, 277

F.3d at 1342; Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058 (“The

arbitrary and capricious standard applicable here is highly deferential. This standard

requires a reviewing court to sustain an agency action evincing rational reasoning and

consideration of relevant factors.” (citing Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. at 285)); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 959

(Fed. Cir. 1993); By Light Prof’l IT Servs., Inc. v. United States, 131 Fed. Cl. 358, 366

(2017); BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 508 (2013)

(“The court ‘is not empowered to substitute its judgment for that of the agency,’ and it

must uphold an agency’s decision against a challenge if the ‘contracting agency provided

a coherent and reasonable explanation of its exercise of discretion.’” (internal citations

omitted) (quoting Keeton Corrs., Inc. v. United States, 59 Fed. Cl. 753, 755, recons.

denied, 60 Fed. Cl. 251 (2004); and Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at

1381)), appeal withdrawn, 559 F. App’x 1033 (Fed. Cir. 2014); Supreme Foodservice

GmbH v. United States, 109 Fed. Cl. at 382; Alamo Travel Grp., LP v. United States, 108

Fed. Cl. 224, 231 (2012); ManTech Telecomms. & Info. Sys. Corp. v. United States, 49

Fed. Cl. 57, 63 (2001), aff’d, 30 F. App’x 995 (Fed. Cir. 2002); Ellsworth Assocs., Inc. v.

United States, 45 Fed. Cl. 388, 392 (1999) (“Courts must give great deference to agency

procurement decisions and will not lightly overturn them.” (citing Fla. Power & Light Co.

v. Lorion, 470 U.S. 729, 743-44 (1985))), appeal dismissed, 6 F. App’x 867 (Fed. Cir.

2001), and superseded by regulation as recognized in MVS USA, Inc. v. United States,

111 Fed. Cl. 639 (2013).

According to the United States Court of Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v. United

States, 223 Ct. Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v.

United States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g,

Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater

Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69

(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 914

F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good

deal of discretion in determining which bid is the most advantageous to the

Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct. Cl.

69.

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59; see also Res-Care, Inc. v.

United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal

procurement entity, has ‘broad discretion to determine what particular method of

procurement will be in the best interests of the United States in a particular situation.’”

(quoting Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g

en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995

(Fed. Cir. 1996); Geo-Med, LLC v. United States, 126 Fed. Cl. 440, 449 (2016); Cybertech

Grp., Inc. v. United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes that the

agency possesses wide discretion in the application of procurement regulations.”);

Furthermore, according to the United States Court of Appeals for the Federal Circuit:

Contracting officers “are entitled to exercise discretion upon a broad range

of issues confronting them in the procurement process.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,

1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,

procurement decisions are subject to a “highly deferential rational basis

review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.

Cir. 2008) (internal quotation marks omitted).

PAI Corp. v. United States, 614 F.3d at 1351; see also AgustaWestland N. Am., Inc. v.

United States, 880 F.3d 1326, 1332 (Fed. Cir. 2018) (“Where, as here, a bid protester

challenges the procurement official’s decision as lacking a rational basis, we must

determine whether ‘the contracting agency provided a coherent and reasonable

explanation of its exercise of discretion,’ recognizing that ‘contracting officers are entitled

to exercise discretion upon a broad range of issues confronting them in the procurement

process.’” (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238

F.3d at 1332-33 (internal quotation marks and citation omitted))); Weeks Marine, Inc. v.

United States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke

[ ] “highly deferential” rational basis review.’ Under that standard, we sustain an agency

action ‘evincing rational reasoning and consideration of relevant factors.’” (alteration in

original) (quoting CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting

Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058))).

A disappointed bidder has the burden of demonstrating the arbitrary and capricious

nature of the agency decision by a preponderance of the evidence. See Tinton Fall

Lodging Realty, LLC v. United Sates, 800 F.3d at 1364; see also Grumman Data Sys.

Corp. v. Dalton, 88 F.3d at 995-96; Enhanced Veterans Sols., Inc. v. United States, 131

Fed. Cl. 565, 578 (2017); Davis Boat Works, Inc. v. United States, 111 Fed. Cl. at 349;

Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. at 340. The Federal

Circuit has indicated that “[t]his court will not overturn a contracting officer’s determination

unless it is arbitrary, capricious, or otherwise contrary to law. To demonstrate that such a

determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere

inference or suspicion . . . is not enough.” PAI Corp. v. United States, 614 F.3d at 1352

(citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300 (Fed. Cir. 1999)); see

also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387; Sierra Nevada Corp. v.

United States, 107 Fed. Cl. 735, 759 (2012); Filtration Dev. Co., LLC v. United States, 60

Fed. Cl. 371, 380 (2004).

A bid protest proceeds in two steps. First . . . the trial court determines

whether the government acted without rational basis or contrary to law when

evaluating the bids and awarding the contract. Second . . . if the trial court

finds that the government’s conduct fails the APA review under 5 U.S.C.

§ 706(2)(A), then it proceeds to determine, as a factual matter, if the bid

protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351; T Square Logistics Servs. Corp. v.

United States, Fed. Cl. 550, 555 (2017); FirstLine Transp. Sec., Inc. v. United States, 119

Fed. Cl. 116, 126 (2014), appeal dismissed (Fed. Cir. 2015); Eco Tour Adventures, Inc.

v. United States, 114 Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. at 496.

To prevail in a bid protest case, the protestor not only must show that the government’s

actions were arbitrary, capricious, or otherwise not in accordance with the law, but the

protestor also must show that it was prejudiced by the government’s actions. See 5 U.S.C.

§ 706 (“[D]ue account shall be taken of the rule of prejudicial error.”); see also Glenn Def.

Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 907 (“In a bid protest case, the

inquiry is whether the agency’s action was arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law and, if so, whether the error is prejudicial.”); IT

Enter. Sols. JV, LLC v. United States, 132 Fed. Cl. 158, 173 (2017) (citing Bannum v.

United States, 404 F.3d at 1357-58); Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.

672, 694-96 (2010).

Under CICA’s automatic stay, agencies, upon receiving notice that the award is

being protested, are to “direct the contractor to cease performance under the contract

and to suspend any related activities that may result in additional obligations being

incurred by the United States under that contract.” See 31 U.S.C. § 3553(d)(3)(A)(ii)(2).

CICA gives the Agency certain options to override a CICA stay, and, in the above-

captioned bid protest, the Agency did so. CICA provides:

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

under this section)--

(i) upon a written finding that--

(I) performance of the contract is in the best

interests of the United States; or

(II) urgent and compelling circumstances that

significantly affect interests of the United States

will not permit waiting for the decision of the

Comptroller General concerning the protest;

and

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

31 U.S.C. § 3553(d)(3)(C).

Regarding override decisions, the United States Court of Appeals for the Federal

Circuit has determined that “28 U.S.C. § 1491(b)(1) grants the trial court jurisdiction over

an objection to a violation of 31 U.S.C. § 3553(c)(2).” RAMCOR Servs. Grp., Inc. v. United

States, 185 F.3d 1286, 1290 (Fed. Cir. 1999); see also Dyncorp Int’l LLC v. United States,

113 Fed. Cl. at 302 (“We have jurisdiction under the Tucker Act, 28 U.S.C. § 1491(b)

(2006), to review an agency decision to override a CICA stay.” (citing RAMCOR Servs.

Grp., Inc. v. United States, 185 F.3d at 1289-90)); Beechcraft Def. Co., LLC v. United

States, 111 Fed. Cl. 24, 31 (2013); Supreme Foodservice GmbH v. United States, 109

Fed. Cl. at 381 (“Challenges to alleged violations of the CICA automatic stay provision

are within this jurisdiction.” (citing RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d

at 1290)).

Although not binding on this court, a template for evaluating an override

determination was offered by a Judge of this court in Reilly’s Wholesale Produce v. United

States, 73 Fed. Cl. 705 (2006).8 See Supreme Foodservice GmbH v. United States, 109

Fed. Cl. at 384 (“In Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705 (2006),

one judge of our court surveyed the field of prior decisions and was able ‘to distill from

the relevant cases a variety of factors that an agency must consider in making an override

decision.’” (quoting Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. at 711)); but

see PMTech, Inc. v. United States, 95 Fed. Cl. at 343 (“The court in Reilly’s Wholesale

has provided excellent guidance to this court, and to the procurement community, in

identifying factors that may be relevant to most CICA stay override decisions. As to the

precedential weight to be accorded the Reilly’s Wholesale factors, however, the court in

this decision must express some reservations.”). Override protests, however, are very

fact specific inquiries. See PMTech, Inc. v. United States, 95 Fed. Cl. at 344 (quoting

Automation Techs., Inc. v. United States, 72 Fed. Cl. at 727); Automation Techs., Inc. v.

United States, 72 Fed. Cl. at 727, 730. As explained in Beechcraft Defense Co., LLC, the

Reilly’s Wholesale court identified four factors to consider:

(1) “whether significant adverse consequences will necessarily occur if the

stay is not overridden”; (2) “whether reasonable alternatives to the override

exist that would adequately address the circumstances presented”; (3) “how

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

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

compare to the benefits associated with the approach being considered for

addressing the agency’s needs”; and (4) “the impact of the override on

competition and integrity of the procurement system.”

Beechcraft Def. Co., LLC v. United States, 111 Fed. Cl. at 31 (quoting Reilly’s Wholesale

Produce v. United States, 73 Fed. Cl. at 711); see also Supreme Foodservice GmbH v.

United States, 109 Fed. Cl. at 384. The court in Reilly’s Wholesale Produce further stated

that the “decisional law also indicates that certain factors are irrelevant to this analysis,

among them: (i) that the new contract would be better than the old one . . . or (ii) the

override and continuation of the contract is otherwise simply preferable to the agency . .

. .” Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. at 711.

8 As indicated by the same Judge who issued the Reilly’s Wholesale decision, “‘the

decisions of this court are not binding precedent for judges of this court.’” Park Props.

Assocs., L.P. v. United States, 120 Fed. Cl. 787, 790 (2015) (quoting Sotera Def.

Solutions, Inc. v. United States, 118 Fed. Cl. 237, 258 (2014)), aff’d, 677 F. App’x 676

(Fed. Cir. 2017).

In discussing Reilly’s Wholesale, although a Judge of this court argued that “[t]he

court’s focus should be on whether the CICA stay override decision was rational and

whether the agency considered relevant factors, not on whether the agency conformed

its analysis to a specific framework elaborated by this court,” the Judge, nonetheless

acknowledged “the court recognizes the utility of the analytical framework provided by

Reilly’s Wholesale, but does not consider that the Reilly’s Wholesale factors govern the

outcome of this case.” PMTech, Inc. v. United States, 95 Fed. Cl. at 345. Likewise, the

undersigned is not bound by the Reilly’s Wholesale factors, but believes the factors are

a useful tool to help analyze the Agency’s decision to override the automatic stay based

on urgent and compelling circumstances in the context of APA review. See 5 U.S.C.

§ 706(2)(A).

The court in Reilly’s Wholesale Produce v. United States set forth an analytical

framework that was based on “a variety of factors that an agency must consider in making

an override decision based upon urgent and compelling circumstances.” 9 Reilly’s

Wholesale Produce v. United States, 73 Fed. Cl. at 711. The factors articulated in Reilly’s

Wholesale Produce v. United States “have been applied when the stay override is based

upon urgent and compelling circumstances, or based upon the best interests of the United

States.”10 Charles F. Day & Assocs., LLC v. United States, 120 Fed. Cl. 767, 771 (2015);

see also Supreme Foodservice GmbH v. United States, 109 Fed. Cl. at 384 (noting that

the factors articulated in Reilly’s Wholesale Produce v. United States “have been

employed in cases reviewing overrides based on either justification”); E-Mgmt.

Consultants, Inc. v. United States, 84 Fed. Cl. 1, 6 (2008) (applying the Reilly’s Wholesale

Produce v. United States factors to an agency’s decision to override the CICA stay, in

which the agency justified the override decision as being in the “best interests of the

9 In a footnote, the court in Reilly’s Wholesale Produce v. United States stated:

Admittedly, some of the cases cited for the factors that are legally relevant

and irrelevant in this context are ones in which the agency override decision

was based upon the “best interests” of the United States. However, in the

court’s view, the rationale employed in those cases has, where indicated,

application to the review of an override decision based upon urgent and

compelling circumstances.

Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. at 711 n.10.

10 In Dyncorp International LLC v. United States, a Judge of the United States Court of

Federal Claims declined to apply the factors set forth in Reilly’s Wholesale Produce v.

United States to an agency’s override of the CICA stay “in the context of a ‘best interest’

justification.” See Dyncorp Int’l LLC v. United States, 113 Fed. Cl. at 303 n.4. The Dyncorp

International court stated that the Reilly’s Wholesale Produce v. United States test

“overstates what is required by the arbitrary and capricious standard particularly in the

context of a ‘best interest’ justification.” See id. The Dyncorp International court stated

that the “test for evaluating the merits of an agency's override decision is whether the

agency's determination was arbitrary, capricious, or otherwise not in accordance with

law.” Id. at 302 (footnote omitted) (citing 5 U.S.C. § 706 (2012)).

United States”). The undersigned is not bound by the Reilly’s Wholesale factors when

evaluating the Agency’s best interests justification for overriding the CICA stay, but

believes that the Reilly’s Wholesale factors are a useful analytical tool for evaluating

whether the Agency’s best interests justification was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A).

Protestor argues that the “application of the Reilly’s Wholesale factors is entirely

appropriate because the Army itself structured its D&F to correspond to these four factors.

As a result, if the Army’s D&F justifications are insufficient or unreasonable under the four

Reilly’s Wholesale factors, then its overall Override Decision itself must also be arbitrary

and capricious.” (citations omitted). In its motion for judgment on the Administrative

Record, defendant states, “whether Reilly’s accurately states the law or not, the Army has

adopted the Reilly’s factors when making its override decision. Thus, even though Reilly’s

does not apply, when an agency applies the Reilly’s factors in its analysis, the Court can

consider them in favor of the APA standard of review.” (citations omitted). As indicated

above, this court is not restricted by the Reilly’s Wholesale factors, but the factors are a

useful tool to help analyze the Army’s decision to override the automatic stay based on

urgent and compelling circumstances in the context of APA review. See 5 U.S.C.

§ 706(2)(A). Additionally, as noted by protestor, and the defendant itself, the contracting

officer used the framework of the Reilly’s Wholesale factors, and so this court includes in

its analysis of the contracting officer’s Determination & Findings consideration of the

Reilly’s Wholesale factors.

Regarding the first factor, “‘whether significant adverse consequences will

necessarily occur if the stay is not overridden,’” Beechcraft Def. Co., LLC v. United States,

111 Fed. Cl. at 31 (quoting Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. at

711), protestor argues that “[t]he Army’s D&F fails to reasonably explain why its cited

adverse consequences only now necessarily require drastic action to prevent alleged

harm to American interests.” Intervenor argues “the national security concerns set forth

in the D&F weigh heavily in favor of the Army’s override decision and deserve deference.”

Defendant contends that “[t]he Army rationally determined that significant adverse

consequences to national security, through a lack of security and continued operation of

the CENTRIXS-K and SIPR communication networks, would occur absent an override.”

As noted above, for the first factor, the Determination & Findings stated:

It is imperative that continued performance for National Security is

unimpeded. No other reasonable alternatives to the override exist.

USACISA mission supported by the contract performance directly sustains

the Operations and Maintenance and Cybersecurity of the Combined

Enterprise Regional Information Exchange System (CENTRIXS) Korea (K)

and the Secret Internet Protocol Router Network (SIPR). [redacted]. This is

an enormous mission capability to take on without any type of transition or

for a very short period contract.

[redacted] Failure to approve the CICA Stay Override will put National

Defense, National Security and Allied missions in grave jeopardy of certain

failure.

(capitalization in original). Protestor concedes “that the IT services at issue here are

important and contribute to the success of operations in Korea,” but argues “the Army has

still failed to justify why the cited concerns necessarily will occur absent only the drastic

action of overriding the CICA Stay.” (capitalization in original). The contracting officer in

the Determination & Findings explained that “[redacted].” The lack of services would have

far-reaching and [redacted] consequences. The Determination & Findings rationally

support a finding that significant adverse consequences will occur if the stay was not

overridden in the above captioned protest.11

The second Reilly’s Warehouse factor, asks whether reasonable alternatives to

the override exist that would adequately address the circumstances presented. See

Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. at 711. The Determination &

Findings stated that no reasonable alternative existed, first, because the Amy cannot

perform the operations itself because it does “[redacted] in order to provide the required

quality and level of support.” The contracting officer in the Determination & Findings also

noted:

The second possibility would be to exercise an option under the incumbent

contract or issue a sole source bridge contract to the incumbent, General

Dynamics Information Technology (GDIT), for the duration of the protest.

The incumbent contract is comprised of a base year, two (2) 12-month

option periods, and a final 8½ month option period which ends on 12 April

2020. The contract did not include the FAR 52.217-8 Option to Extend

Service because the last date for performance under Army CHESSITES-2S

task orders is 12 April 2020. A re-compete for a bridge contract is not

possible because of insufficient time to solicit, evaluate, award and then

mobilize and phase-in a new contractor as less than two months is left on

the incumbent contract. Therefore, a sole source bridge contract is the only

possible alternative to continue services with the incumbent in the absence

of an override.

(capitalization in original). Additionally, the contracting officer in the Determination &

Findings explained:

there is significant evidence to demonstrate that GDIT is not able to

satisfactorily perform the required services even though they are the

11Defendant argues that “[t]he Court in Reilly’s opined that ‘some of the problems

encountered here are, at least in part, of defendant’s own making’ not as part of its

analysis of factor 1, [Reilly’s Wholesale Produce v. United States,] 73 Fed. Cl. at 711-14,

but rather as part of its weighing of harms. Id. at 716.” As defendant repeatedly pointed

out Reilly’s is not binding on this court, and this court use the guidance in Reilly’s as the

court deems appropriate.