Sierra Nevada Corporation v. United States

In the United States Court of Federal Claims

No. 21-1186C

(Filed Under Seal: July 1, 2021)

(Reissued: July 12, 2021) 1

)

SIERRA NEVADA CORPORATION, )

)

Plaintiff, )

)

v.

)

THE UNITED STATES, )

)

Defendant, )

)

and )

)

SIKORSKY AIRCRAFT )

CORPORATION, )

Defendant- )

Intervenor. )

)

Marques O. Peterson, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C., for

Plaintiff. With him on the briefs were J. Matthew Carter, Richard B. Oliver, and Dinesh C.

Dharmadasa, Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, CA.

David M. Kerr, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M.

Boynton, Acting Assistant Attorney General, Civil Division, Martin F. Hockey, Jr., Acting

Director, Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C., and Erika L. Whelan

Retta, Commercial Litigation Field Support Center, United States Air Force, Joint Base

Andrews, MD.

1On July 1, 2021, the Court issued an unredacted version of this opinion and order under seal.

ECF No. 44. On July 8, 2021, Plaintiff filed a joint proposed redacted version. ECF No. 45.

After considering the parties’ proposed redactions, this Court reissues this public version of the

July 1, 2021, opinion and order.

Marcia G. Madsen, Mayer Brown LLP, Washington, D.C., for Defendant-Intervenor.

With her on the briefs were David F. Dowd and Cameron R. Edlefsen. Also on the briefs

was Heather A. Bloom, Lockheed Martin Corporation, Bethesda, MD.

OPINION AND ORDER

SOLOMSON, Judge.

Plaintiff, Sierra Nevada Corporation (“SNC”), challenges the decision of

Defendant, the United States – acting by and through the United States Air Force (“Air

Force” or “Agency”) – to award a multi-year, $980 million dollar, sole-source contract to

the Defendant-Intervenor, Sikorsky Aircraft Corporation (“Sikorsky”). The purpose of

the contract is to perform capability upgrades (“CU”) for the Combat Rescue Helicopter

(“CRH”), an advanced, multi-engine rotary wing aircraft. The Air Force determined

that only Sikorsky has the present capability to perform the necessary upgrades in the

absence of a technical data package (“TDP”) 2 that the Air Force is concerned will not be

available to other potential offerors in a timely manner. The Court concludes that while

a sole-source contract award to Sikorsky generally is supported by the administrative

record in this case, the duration of the contract award is improper, and permanent

injunctive relief is warranted.

Accordingly, and for the reasons explained below, the court GRANTS SNC’s

motion for judgment on the administrative record, DENIES the government’s motion

for judgment on the administrative record, and DENIES Sikorsky’s motion for

judgment on the administrative record.

I. Factual Background 3

In 2014, the Air Force awarded a contract to Sikorsky to develop the CRH to

replace an aging fleet of Pave Hawk aircraft. AR 2. That contract includes an

engineering and manufacturing development phase, a low rate initial production phase,

and a full rate production phase. Id. Over the past five and half years of Sikorsky’s

work on the CRH development contract, “the requirements baseline has continued to

2A technical data package “[n]ormally includes technical design and manufacturing

information sufficient to enable the construction or manufacture of a defense item component

modification, or to enable the performance of certain maintenance or production processes.”

See https://samm.dsca.mil/glossary/technical-data-package-tdp. For the CRH upgrade

contract, the TDP includes information such as interface control documents and wiring

diagrams that are specific to the requested modifications. AR 136.

3This background section constitutes the Court’s findings of fact drawn from the administrative

record. Citations to the administrative record (ECF No. 13, as supplemented and amended by

ECF Nos. 20–21) are denoted as “AR.”

2

evolve, driving the need for planning in support of a new contract vehicle to address a

broad spectrum of known and undefined operational capabilities.” Id.

During the summer of 2019, the Air Force determined that the CRH’s capabilities

required updating “to ensure it can counter modern threats and perform its critical

[Personnel Recovery/Combat Search and Rescue] mission.” Id. On October 1, 2019, the

Air Force issued a Sources Sought Synopsis (“SSS”) indicating that the Agency was

“officially conducting market research that will be used to assess the ability of

companies and industry at large to perform development, integration, verification,

production, and installation of a broad spectrum of capability upgrades.” AR 3, 51. The

Air Force identified seventeen “CRH Capability Upgrade Candidates” and sought

responses to twenty-one questions – many of which required check-box style answers

rather than narrative replies – intended to help “determine the acquisition strategy for a

prospective CRH capability upgrade contract.” AR 3, 51–58. SNC submitted its

response to the SSS on October 19, 2019. AR 290–99. [***] other companies also

submitted timely responses to the SSS by its October 25, 2019 deadline. AR 3.

On October 29, 2019, the Air Force posted a notice for a CRH Capability

Upgrades Industry Day on the Federal Business Opportunities website. AR 3, 60–67.

[***] companies, including SNC, responded with registration requests to attend the

event. AR 3.

On November 20 and 21, 2019, the Air Force held the in-person Industry Day

event. AR 3, 67–88. In a general overview session on the morning of November 20,

2019, the Air Force summarized the program’s requirements baseline, preliminary

acquisition strategy overview, and pre-award schedule. AR 3–4, 71, 77–86. The Air

Force also held one-on-one sessions to allow each prospective industry source to

“[s]ummarize [their] qualifications and capabilities in response to Government

requirement[s,] [r]eview gaps/risks in response to draft requirement set [and] [p]resent

questions and/or seek clarifications.” AR 4, 87.

SNC participated in both the general session and a one-hour one-on-one session.

AR 4, 324. During SNC’s one-on-one presentation – as well as in its October 2019

response to the SSS– SNC focused on a single capability upgrade requirement,

Degraded Visual Environment (“DVE”), “which was only one of over ten preliminary

CRH CU candidates.” AR 11, 350. “Given the extensive work history between the Air

Force and SNC, specifically in the [Intelligence, Surveillance, Reconnaissance and

Special Operations Forces] (ISR/SOF) directorate, the Air Force noted that SNC might

want to go back and take a look at its capabilities since it only addressed one capability

(DVE).” 4 AR 11, 34.

4Based on the Air Force’s market research, the Agency also “decided to hold a virtual Industry

Day for Small Business participants” to determine if a small business set-aside was appropriate

3

Subsequently, a [***] program office team of engineers, program managers,

contracting personnel and other subject matter experts evaluated the industry data,

which included the SSS responses, internet searches, reviews of company websites, and

discussions with other government sources. AR 5, 138–39, 145. The team evaluated

each respondent’s capabilities and experience in the “development, integration,

installation . . ., and verification of capabilities into large or small DoD or commercial

rotary or fixed wing aircraft.” AR 5, 96, 145. The team assigned the following ratings to

describe each respondent’s capabilities and experience: little to no, limited, moderate,

significant, or maximum. AR 5. The Air Force identified [***] “capable vendors,”

including SNC, meaning that each was “evaluated as capable of performing required

development contract activities to include development, integration, and verification,”

assuming the availability of a TDP. AR 98.

On March 16, 2020, the Air Force’s CRH acquisition team held an Early Strategy

and Issues Session (“ESIS”) to, amongst other things, summarize the market research

and confirm courses of action for the CRH contract structure. AR 6, 90–116. The ESIS

team identified each of the industry sources and confirmed a basis for competition,

noting that “[i]ndustry feedback verified need for full [TDP] to implement candidate

CU requirements.” AR 97–98.

The Agency is uncertain regarding when it will have the full TDP to provide to

potential CRH upgrade offerors. On one hand, the Agency represents that Sikorsky

must provide the complete TDP pursuant to its current CRH development contract,

referred to as the Original Equipment Manufacturer (“OEM”) contract. AR 20–21, 360.

On the other hand, that TDP is currently unavailable both because Sikorsky’s the TDP

delivery due date has not yet arrived and because of a nascent dispute between the

government and Sikorsky over data rights. AR 144, 360–61. While the government

initially indicated that Sikorsky was obligated to provide a TDP by late spring 2021, the

government now estimates that “[***] is the earliest Sikorsky could deliver a complete

and useable TDP[.]” AR 360–61. The government insists, however, that it “has not

granted Sikorsky relief from the contractual requirement to deliver the TDP” and “will

respond appropriately if Sikorsky fails to meet its contractual delivery requirements.”

AR 361. There is no evidence in the record that Sikorsky has not met its contractual

requirements or otherwise does not intend to meet its contractual requirements to

provide the TDP. Nor is there any evidence in the record that the TDP is likely to be

unavailable for an extended duration. Indeed, there is no evidence in the record

regarding how long it might take for Sikorsky to provide the TDP assuming a

prolonged data rights dispute.

for the CRH upgrade contract. AR 4, 26. On January 29, 2020, the Air Force sent each of the

[***] interested small businesses follow-up questions to assess their capabilities and core

competencies and offered each a 30-minute follow-up virtual meeting. AR 4–5, 137. The Air

Force ultimately determined that a small business set-aside was not possible. AR 5, 137.

4

Accordingly, the ESIS team discussed various contract vehicles in order to

address and mitigate the unavailability of the OEM TDP. AR 6. The ESIS team

identified four different, possible courses of action and listed their advantages and

disadvantages: (1) a sole-source indefinite delivery/indefinite quantity (“ID/IQ”)

contract, (2) a single competitive ID/IQ contract, (3) a multiple award contract

competitive ID/IQ contract, and (4) a single award competitive “C” contract. AR 6, 101.

According to the ESIS team, each option except for the sole-source ID/IQ contract

“[***].” AR 101.

The ESIS team ultimately recommended awarding a sole-source ID/IQ contract

to Sikorsky because it “[***].” AR 6–7, 102. The team qualified its recommendation by

noting the expectation that the “[***].” AR 102. On March 26, 2020, after the ESIS

briefing with the Program Executive Officer, the Contracting Officer (“CO”) finalized

and signed the Market Research Report. AR 7, 117–139. On April 28, 2020, the CO

signed a Justification and Approval (“J&A”) document, which authorized the sole-

source ID/IQ award to Sikorsky and represents the Agency’s decision at issue in this

case. AR 140–48.

During that timeframe, on March 18, 2020, SNC’s Vice President of Business

Development, [***], informed the CO that SNC was preparing an update to its original

SSS response. AR 353. Mr. [***] inquired if the Agency would be open to receiving this

update, and, if so, what the deadline would be. Id. The administrative record contains

no evidence that the CO ever responded to this inquiry.

On May 15, 2020, almost two months after the CO approved the J&A, SNC

submitted a second response to the SSS. AR 299. In SNC’s second response, SNC

provided narrative answers to each of the SSS questions and reiterated its ability to

“[***] remove a lot of the data requirements.” AR 313 (emphasis added). SNC did not

clarify or attempt to quantify what it meant by “a lot,” nor did SNC indicate with any

particularity which components could be [***]. Id. Moreover, SNC admitted that one of

its top “three challenges to on-time completion of development, integration, and

verification requirements” would be “[t]imely access to proprietary OEM Technical

Data Packages (TDP) and related technical systems.” AR 312. On May 27, 2020, the

Contracting Officer confirmed receipt of SNC’s second submission in response to the

SSS. AR 327.

On January 19, 2021, the Service Acquisition Executive signed the J&A,

representing the final decision of the Agency to move forward with the sole-source

ID/IQ contract to Sikorsky. AR 8, 140–41. The J&A describes the contemplated award

as “a five-year order period ID/IQ contract with an estimated ceiling of $980.7M. The

contemplated delivery period for the ID/IQ is seven years.” AR 142. The J&A claims

that a sole-source contract is currently necessary because “Sikorsky is the only

contractor in possession of the technical expertise [and] technical data, . . . to

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successfully perform these critical processes and meet the full range of CU

requirements.” AR 143. According to the J&A, a “delay in award of the CU contract to

any other source or the attempt to award absent a complete TDP would result in

unacceptable delays in fulfilling [the Air Force]’s requirements.” AR 144. The J&A

further promises that “[t]he CRH Program Office [will] pursue competition when the

necessary data becomes available.” AR 9, 143. The Court confirmed during oral

argument, however, that the Air Force’s putative commitment in the J&A to engage in

competition, once the TDP is available, is entirely voluntary and unenforceable against

the government by any future protestor. Tr. 5 17:13–18:5.

On February 11, 2021, the Air Force posted a Notice of Contract Action on

beta.SAM.gov with a redacted J&A. AR 9, 215–27. On February 22, 2021, SNC filed a

protest with the Government Accountability Office (“GAO”) challenging the Air Force’s

decision to award a sole-source contract to Sikorsky. AR 10, 228. SNC withdrew its

GAO protest on April 2, 2021. ECF No. 1 (“Compl.”) ¶ 40.

II. Procedural History

On April 12, 2021, SNC filed its complaint in this Court. Notwithstanding that

SNC divided its complaint into five counts, the thrust of both SNC’s complaint and its

motion for judgment on the administrative record – and thus SNC’s central claim – is

that the Agency’s decision to sole-source the work at issue to Sikorsky is arbitrary,

capricious, or otherwise contrary to law. 6 SNC seeks permanent injunctive relief and

“any further relief that the Court deems appropriate.” Compl. at 33.

On April 13, 2021, Sikorsky filed an unopposed motion to intervene, which this

Court granted. ECF No. 10. On April 16, 2021, the government filed the administrative

record in this matter. ECF No. 13. On May 7, 2021, SNC filed its motion for judgment

on the administrative record. ECF No. 23 (“Pl. MJAR”). That same day, the

5 “Tr.” refers to the transcript of oral argument proceedings conducted on May 27, 2021.

6In Count I of its complaint, SNC asserts that the Air Force failed to meaningfully consider its

capabilities, rendering the J&A deficient. Compl. ¶ 46. SNC asserts in Count II that the Air

Force violated the Federal Acquisition Regulation (“FAR”) by not updating the J&A after the

Agency received SNC’s May 15, 2020 submission further addressing the SSS. Compl. ¶ 51. In

Count III, SNC asserts that the Air Force unreasonably determined that Sikorsky was the only

source that could satisfy the Agency’s requirement. Compl. ¶ 55. In Count IV, SNC asserts that

Air Force did not satisfy its obligation to engage in reasonable advance planning. Compl. ¶ 65.

All of these counts are merely arguments challenging the Agency’s sole-source decision as

embodied in the J&A. SNC further asserts in Count V that the Air Force violated the Anti-

Deficiency Act. Compl. ¶ 72. In SNC’s response brief, however, SNC formally withdrew its

assertion that the Air Force violated the Anti-Deficiency Act. Pl. Resp. at 26 n.16. Given that

SNC abandoned this claim, the Court does not address it further.

6

government filed its motion to dismiss count five of SNC’s complaint pursuant to Rule

12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and a cross-

motion for judgment on the administrative record on the remaining counts. ECF No. 24

(“Def. MJAR”). Sikorsky also filed its cross-motion for judgment on the administrative

record. ECF No. 22 (“Intv. MJAR”). On May 21, 2021, the parties filed their respective

response briefs. ECF Nos. 29 (“Intv. Resp.”), 30 (“Pl. Resp.”), 31 (“Def. Resp.”).

On May 27, 2021, the Court held oral argument on the parties’ pending motions.

Minute Entry, May 27, 2021. On May 28, 2021, the Court directed the government to

complete the administrative record with documents to support specific factual

assertions in the J&A relating to the TDP, or, in the alternative, to file a status report

certifying that no additional administrative record documents existed. ECF No. 32.

Additionally, the Court instructed each party to file a supplemental brief addressing

whether any legal authority supports the proposition that there must be some

connection – beyond the applicable standard of review contained in the Administrative

Procedure Act (“APA”) – between the scope of the J&A in support of a sole-source

contract, on the one hand, and the scope or duration of the intended sole-source

contract vehicle, on the other. Id.

On June 4, 2021, the government filed a status report and a motion to explain the

administrative record in response to the Court’s May 28, 2021, Order. ECF Nos. 35 and

35-1. The government, in its status report, indicated that no additional documentation

existed to support several of the Air Force’s factual assertions in the J&A. ECF No. 35.

As part of the government’s motion to explain the administrative record, the

government submitted two new declarations: one from [***], the Chief of the Helicopter

Program Office, and a second from [***], a contractor who served as a technical advisor

to the Helicopter Program Office. 7 ECF No. 35-1. [***]’s declaration asserts that the Air

Force’s consideration of whether any of the potential offerors could complete any of the

helicopter upgrades in a timely manner without the TDP is reflected in the current

administrative record. Id. [***], on the other hand, explained (1) that he was the

product support contractor who provided the estimate in the J&A of how long it would

take an offeror to complete the CRH upgrade requirements without the TDP, and (2)

how he reached his conclusion. Id. Additionally, on June 7, 2021, all of the parties filed

7 The Court generally does not consider post-hoc rationalizations in evaluating an agency’s

decision. See, e.g., Allied Tech. Grp., Inc. v. United States, 92 Fed. Cl. 226, 229–30 (2010) (“The

record should not include materials created or obtained subsequent to the agency's decision.”);

see also Axiom Resource Management, Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009)

(holding that the “focus of judicial review of agency action remains the administrative record,

which should be supplemented only if the existing record is insufficient to permit meaningful

review consistent with the APA”). Because SNC consented to the motion, however, the Court

will consider the declarations the government submitted to the extent that they explain existing

information in the administrative record, but not if they add new facts. ECF No. 35.

7

supplemental briefs to address the relationship between the scope of the J&A and the

scope of the intended sole-source award. ECF Nos. 37–39.

III. Jurisdiction and Standing

The Tucker Act, as amended by the Administrative Dispute Resolution Act of

1996, Pub. L. No. 104-320, 110 Stat. 3870, provides this Court with “jurisdiction to

render judgment on an action by an interested party objecting to a solicitation by a

Federal agency for bids or proposals for a proposed contract or 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(b)(1). In a pre-

award solicitation protest, an interested party is “‘an actual or prospective bidder or

offeror whose direct economic interest would be affected by the award of the contract.’”

CGI Fed. Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 2015) (quoting Am. Fed’n of

Gov’t Emps. v. United States, 258 F.3d 1294, 1299 (Fed. Cir. 2001)). A prospective bidder

is one who, but for the alleged deficiencies in the procurement process, would have

submitted a bid and diligently pursues its interests before the solicitation period ends.

CGI Fed., 779 F.3d at 1349–51; see MLS-Multinational Logistic Servs., Ltd. v. United States,

143 Fed. Cl. 341, 356–59 (2019). There is no dispute that SNC is a prospective bidder –

and thus an interested party – within the meaning of the statute. No party contests this

Court’s jurisdiction in this case, and the Court concludes that there are no jurisdictional

impediments to deciding SNC’s claims on the merits.

IV. Standard of Review

Judgment on the administrative record pursuant to RCFC 52.1 “is properly

understood as intending to provide for an expedited trial on the record.” Bannum, Inc.

v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The rule requires the Court “to

make factual findings from the record evidence as if it were conducting a trial on the

record.” Id. at 1354. The Court asks whether, given all the disputed and undisputed

facts, a party has met its burden of proof based on the record evidence. Id. at 1356–57.

Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the

Court reviews “the agency’s actions according to the standards set forth in the

Administrative Procedure Act, 5 U.S.C. § 706.” Nat’l Gov't Servs., Inc. v. United States,

923 F.3d 977, 981 (Fed. Cir. 2019). Pursuant to the APA standard of review, the Court

asks “whether the agency’s action was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” Id. (quoting 5 U.S.C. § 706(2)). The Court must

“determine whether ‘(1) the procurement official’s decision lacked a rational basis; or

(2) the procurement procedure involved a violation of regulation or procedure.’” Id.

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

8

“When a challenge is brought on the first ground, the test is whether the

contracting agency provided a coherent and reasonable explanation of its exercise of

discretion, and the disappointed bidder bears a heavy burden of showing that the

award decision had no rational basis.” Banknote Corp. of Am., Inc. v. United States, 365

F.3d 1345, 1351 (Fed. Cir. 2004) (internal citations omitted). The Court thus must

determine whether “the agency 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 [the decision] is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.–

Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle

Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

An agency’s decision also may be arbitrary and capricious “if the agency has relied on

factors which Congress has not intended it to consider.” Technica LLC v. United States,

142 Fed. Cl. 149, 154 (2019) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43).

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

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

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir.

2001) (citing Kentron Hawaii, Ltd. V. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)).

“When a party contends that the procurement procedure in a sole-source case involved

a violation of a statute, regulation, or procedure, it must establish prejudice by showing

that it would have had a substantial chance of receiving the award.” Emery Worldwide

Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001).

V. Discussion

The Competition in Contracting Act (“CICA”) requires agencies, in conducting

“a procurement for property or services,” to use competitive procedures to obtain “full

and open competition.” 10 U.S.C. § 2304(a)(1). An agency may be exempt from this

requirement when the property or services “are available from only one responsible

source . . . and no other type of property or services will satisfy the needs of the

agency.” 10 U.S.C. § 2304(c)(1). The FAR thus permits an agency to award a sole-

source contract where the supplies or services to be acquired are “available only from

the original source in the case of a follow-on contract for the continued development or

production of a major system or highly specialized equipment, . . . when it is likely that

award to any other source would result in . . . [u]nacceptable delays in fulfilling the

agency’s requirements.” FAR 6.302-1(a)(2)(ii)(B) (supplies); FAR 6.302-1(a)(2)(iii)(B)

(services).

Prior to awarding a sole-source contract, a contracting officer must: (1) justify the

sole-source award in writing; (2) certify the “accuracy and completeness of the

justification”; and (3) obtain the approval of the senior procurement executive of the

agency. FAR 6.303-1(a). Each justification must “contain sufficient facts and rationale

9

to justify the use of the specific authority cited,” including “[a] demonstration that the

proposed contractor’s unique qualifications or the nature of the acquisition requires use

of the authority cited,” “[a] description of efforts made to ensure that offers are solicited

from as many potential sources as is practicable,” [a] determination by the contracting

officer that the anticipated cost to the Government will be fair and reasonable,” “[a]

description of the market research conducted,” and “[a]ny other facts supporting the

use of other than full and open competition.” FAR 6.303-2. For situations in which

access to technical data hinders the agency’s ability to compete a contract, the

justification should also include an “[e]xplanation of why technical data packages,

specifications, engineering descriptions, statements of work, or purchase descriptions

suitable for full and open competition have not been developed or are not available.”

FAR 6.303-2(b)(9)(i). As discussed, supra, the Court will sustain a challenge to an

agency’s decision only if the agency acted in a manner that was arbitrary, capricious, or

contrary to law. Nat’l Gov't Servs., Inc., 923 F.3d at 981.

SNC alleges that the Air Force acted in a manner that was arbitrary, capricious,

and contrary to law by failing to (1) meaningfully consider SNC’s capabilities as

described in its May 2020 submission in response to the SSS, (2) update the J&A based

upon that submission, and (3) engage in reasonable advance planning to mitigate the

unavailability of the TDP. Compl. at 19, 23, 28. SNC further argues that the Air Force

unreasonably determined that Sikorsky was the only source that could satisfy the

Agency’s requirements in a timely manner. Id. at 24. Although the Court rejects many

of SNC’s arguments, the Court concludes that the J&A does not justify a sole-source

award of a multi-year, single award ID/IQ contract.

A. The Air Force Was Not Required To Consider SNC’s Second

Submission 8

As discussed supra, FAR 6.302-1(a)(2) permits an agency to award a sole-source

contract – and thus avoid the requirement to conduct full and open competition –

“[w]hen the supplies or services required by the agency are available from only one

responsible source . . . , and no other type of supplies or services will satisfy agency

requirements.” FAR 6.303-1(a)(2), in turn, provides that “[a] contracting officer shall

not commence negotiations for a sole source contract . . . or award any other contract

without providing for full and open competition unless the contracting officer . . .

[c]ertifies the accuracy and completeness of the justification.” FAR 6.303-1(c) similarly

requires that “[t]echnical and requirements personnel are responsible for providing and

8The first two counts of SNC’s complaint allege that: (1) the Air Force failed to meaningfully

consider its capabilities, and (2) the Air Force violated the FAR by incorrectly certifying the J&A

as accurate and complete. Compl. at 19, 23. Both counts are arguments regarding the Air

Force’s consideration of SNC’s second response to the SSS. Id. Accordingly, the Court

addresses them together.

10

certifying as accurate and complete necessary data to support their recommendation for

other than full and open competition.” SNC alleges that the Agency violated FAR

6.303-1(a)(2) and FAR 6.303-1(c) by not considering SNC’s May 2020 response to the

SSS. Compl. at 23; Pl. MJAR at 26–27. SNC contends that because the Air Force did not

revise and update the J&A to account for SNC’s second response, the J&A was not

accurate and complete as required by FAR 6.303-1(a)(2). Pl. MJAR at 26–27, n.6.

SNC further contends that the Air Force violated FAR 5.207(c)(16)(ii), which

provides that when an agency makes a sole-source award in reliance on FAR 6.302-1,

the agency must allow all responsible sources to “submit a capability statement,

proposal, or quotation, which shall be considered by the agency.” Compl. ¶ 43. SNC

posits that because the Air Force did not properly consider SNC’s second submission,

the Agency violated the FAR’s mandate to meaningfully consider SNC’s capability

statement. Compl. ¶¶ 41–48. For the reasons discussed below, the Court rejects SNC’s

arguments.

First, the Air Force never committed to reviewing SNC’s second submission.

SNC relies on several conversations with the Contracting Officer as putative evidence

that she approved SNC’s request to make a second submission in response to the

Agency’s SSS. Pl. MJAR at 25. In particular, SNC cites the following statements from

the Contracting Officer as evidence that she agreed to review SNC’s second submission:

“We did receive your submission; thank you. We will let you know if we have any

questions or need any clarification as we review. I’ll be in touch if we’d like to set up a

meeting.” Pl. MJAR at 11, 25–26; AR 327. This language, however, is nothing more

than a perfunctory acknowledgment that the Air Force received SNC’s second

submission. In fact, despite SNC’s allegation that “[t]he Contracting Officer for the

CRH capability upgrades program approved SNC’s request to make a second

submission to the SSS[,]” SNC’s only express request to submit a second response went

unanswered by the Contracting Officer. Compl. ¶ 5; AR 353. Moreover, that request

was transmitted in March 2020, and two months elapsed before SNC finally submitted

its second response. AR 299, 353. There is thus no evidence in the record to support

SNC’s claim that the Agency affirmatively agreed to review a second submission in

response to the SSS.

Second, even if the Air Force had committed to reviewing SNC’s second

submission, it was untimely. The Air Force issued the SSS on October 1, 2019, with an

October 25, 2019 deadline for responses. AR 3. At Industry Day less than one month

later, the government advised SNC that it “should provide a more detailed response”

given that SNC mainly focused on a single capability upgrade – Degraded Visual

Environment – rather than providing the Air Force a more comprehensive briefing on

SNC’s capabilities. AR 4. The second, May 2020 submission that SNC contends the Air

Force should have considered was submitted almost seven months after the initial

deadline for responses to the SSS. AR 299. During that time, the Air Force conducted

11

extensive market research – performing both its own independent research on SNC’s

capabilities and utilizing SNC’s first submission – before determining that SNC (or, for

that matter, any other contractor) would require a TDP in order to complete the CRH

upgrades in a timely manner. AR 11, 15. While the Air Force suggested in November

2019 that SNC provide additional information regarding its capabilities, the Air Force

could not reasonably have been expected to put its procurement planning on hold for

months while SNC revised or supplemented its initial response. 9 AR 11–12, 19.

Third, the Air Force meaningfully considered SNC’s capabilities even without

evaluating SNC’s May 2020 submission. Accordingly, even if the Air Force had been

required to review SNC’s second submission, but failed to do so, SNC was not

prejudiced. SNC asserts that “had the Air Force actually and meaningfully reviewed

SNC’s May 15, 2020 Response to the SSS before final approval in January 2021 of the

J&A, it would have recognized that SNC can provide timely capability upgrades with or

without Sikorsky’s TDP.” Compl. ¶ 12 (emphasis in original). The Air Force, however,

recognized that while several other sources theoretically could provide the capability

upgrades without the TDP, they could not do so without unacceptable risk and delay. 10

AR 146. In fact, the Air Force arrived at this conclusion after receiving SNC’s first

response in which SNC addressed that very issue: SNC informed the Air Force that it

could “[***] remove a lot of the data requirements.” AR 295 (emphasis added). SNC’s

second submission thus did not provide new information that would have changed the

Agency’s acquisition strategy as articulated in the J&A, given that the Air Force already

was aware of SNC’s purported ability to perform without the TDP. Moreover, Sikorsky

correctly points out that while SNC had asserted that it could remove “a lot” of the data

requirements, “[r]emoving ‘a lot’ of the data requirements is not the same as removing

‘all’ or even most of them. SNC thus did not state it could deliver a ‘complete’ TDP.”

Intv. Resp. at 8 (citing AR 313). Thus, even assuming arguendo that the Air Force was

required to review SNC’s untimely second submission – which the Court concludes the

Air Force was under no obligation to do – SNC still has failed to demonstrate that such

9SNC alleges that, “[i]n speaking with [the Contracting Officer] in April, SNC requested and

was granted an exception to the due date for the SSS.” Pl. MJAR at 9 (citing AR 299). The

Contracting Officer, however, denies having any record or recollection of such a conversation.

AR 12. Additionally, the record is devoid of evidence supporting SNC’s assertion.

10SNC attempts to rebut this conclusion by asserting that it is “capable of accomplishing a TDP

in [***], as it previously did on the [***] aircraft project discussed in its May 2020 Response.” Pl.

MJAR at 29 (emphasis omitted) (citing AR 309–10). SNC, however, did not provide this

information in its May 2020 submission, and, even within SNC’s MJAR, SNC provides no

evidence that the [***] aircraft project and the CRH project are comparable. The Court thus

declines to second-guess the Air Force’s conclusion that SNC could not realistically accomplish

this feat in [***].

12

an error would have impacted the Air Force’s recommendation to proceed with a sole-

source acquisition. 11

B. The Air Force Engaged In Reasonable Advance Planning

SNC asserts that “had the Air Force engaged in reasonable advanced planning, it

would have taken reasonable and appropriate steps to resolve the TDP dispute with

Sikorsky at some point within the past year.” Compl. ¶ 66 (emphasis in original). SNC

thus contends that “the Air Force’s dilatory tactics” constitute a lack of reasonable

advanced planning in violation of CICA’s mandate. Pl. MJAR at 34; Compl. ¶¶ 64–65.

CICA prohibits an agency from justifying a sole-source award “on the basis of

the lack of advance planning.” 10 U.S.C. § 2304(f)(4). Courts have qualified that rule,

however, in explaining that “procurement planning ‘need not be entirely error-free or

even actually successful. All that is required is that the planning actions be reasonable.’”

Infrastructure Def. Techs., LLC v. United States, 81 Fed. Cl. 375, 398 (2008) (quoting Cubic

Def. Sys., Inc. v. United States, 45 Fed. Cl. 239, 258 (1999)).

Sikorsky is required to deliver a TDP in “late Spring 2021” pursuant to the

company’s current contract with the government. AR 360. The government, however,

asserts that delivery of the TDP is delayed (or may be delayed) due to an ongoing

dispute with Sikorsky over the scope of data rights:

In ongoing negotiations, Sikorsky maintains that a

comprehensive “total package” agreement is required before

it will deliver any portion of the TDP. The Government has

not granted Sikorsky relief from the contractual requirement

to deliver the TDP by Spring 2021, but based on the

combination of the impasses associated with the

Government’s attempt to reach agreement on the TDP scope

and the fact that the Government has been told that Sikorsky

is waiting to solicit TDP data from suppliers until the

agreement is reached, the Government expects Sikorsky will

11 The government further asserts that “since the filing of the [GAO] protest, the technical team

has thoroughly reviewed SNC’s May 2020 response and has still concluded that SNC is not

capable of performing the requirements absent an unlimited CRH TDP.” Def. MJAR at 19–20

(citing AR 12). While the Court does not consider post-hoc explanations when evaluating the

sufficiency of a J&A, see Allied Tech. Grp., Inc., 92 Fed. Cl. at 229–30, we note that this review

supports the conclusion that SNC was not prejudiced by the Air Force’s failure to review its late

submission. Even if the Court were to have found that the Agency should have reviewed this

submission – which we do not – the Court sees little point in remanding this matter back to the

Agency to consider a document that the Agency clearly already has considered.

13

not be able to deliver the TDP by Spring 2021. The

Government will respond appropriately if Sikorsky fails to

meet its contractual delivery requirements.

AR 361; see also AR 112 (indicating that “[Helicopter Program Office] and [Sikorsky] not

aligned on TDP scope . . . , Detailed Manufacturing and Process Data definition &

delivery, legacy data”); Intv. MJAR at 28. During oral argument, the government

further clarified that:

This is . . . a good faith dispute over data rights, the data rights

in the TDP. And the Government has put together a team

specifically to address these issues with Sikorsky and to

defend the Government’s data rights. That’s really what the

issue here is, that the Government is defending its rights to

this data that the Government’s money created this

technology and it has rights to the technology. Sikorsky is

arguing against the Government and the Government is

addressing it, but there’s no breach yet.

Tr. 25:7–18 (emphasis added). The government also clarified that because the TDP is

due ninety days after a “system verification review” is complete, Sikorsky is not

currently late in delivering the TDP and, therefore, is not in breach of the agreement.

Tr. 12:19–13:18.

The Court thus rejects SNC’s contention that the Air Force failed to engage in

reasonable advance planning. The record supports the Air Force’s determination, based

on industry feedback and its own independent research, that a full TDP is required

complete the CRH upgrades in a timely manner. AR 98. At the time that the Air Force

published the SSS and drafted the J&A, the Agency believed that Sikorsky would

provide the TDP on the contractually prescribed timeline. It still may do so. The fact

that the Air Force subsequently realized that a data rights dispute between the

government and Sikorsky may delay the delivery of the TDP does not constitute a lack

of advance planning. To the contrary, if anything, the Air Force actively and currently is

trying to mitigate any problems by engaging in advance planning to address an

anticipated problem that has yet to materialize: Sikorsky’s breach of its contractual

obligation to deliver the TDP. Tr. 13:17–18 (“But as of right now, the TDP is not late.

Sikorsky is not late in delivering it.”). Accordingly, and absent any evidence in the

record that the dispute between the government and Sikorsky is not in good faith (e.g.,

the product of collusion to justify the sole-source contract), the Court concludes that the

Agency’s advance planning was reasonable.

14

C. The J&A Does Not Justify A Sole-Source, Single Award ID/IQ

Contract To Sikorsky For The Currently Planned Duration

Notwithstanding the above conclusions, the Court agrees with SNC that the J&A

does not justify a long-term, $980 million, sole-source, single award ID/IQ to Sikorsky.

Compl. ¶¶ 11, 62; Pl. MJAR at 22. Although the record generally supports a sole-source

award to Sikorsky if and when the TDP is not delivered in a timely manner – and

during any subsequent period in which the TDP remains unavailable – the Court

concludes that the scope of the contemplated contract exceeds the government’s

demonstrated need. See Barnes Aerospace Grp., B-298864, 2006 CPD ¶ 204, 2006 WL

3849071 (Dec. 26, 2006) (holding that “it was unreasonable for the Air Force to justify

this award for a two-year base period”); Pac. Sky Supply, Inc., B-228049, 87-2 CPD ¶ 504,

1987 WL 103141 (Nov. 23, 1987) (finding that the Air Force’s broad discretion “does not

cover the use of an extended time period for which the agency’s justification provides

no basis” and, thus, that the “scope of the procurement [was] excessive and

unwarranted”).

To support a sole-source award to Sikorsky, the Agency in the J&A relied upon

”10 U.S.C. § 2304(c)(1) as implemented by FAR 6.302-1(a)(2)(ii)” and FAR 6.303-2(b)(4),

discussed supra. AR 143. In particular, the Air Force in the J&A concluded that

“Sikorsky is the only responsible source for this follow-on contract for the continued

development and production of a major system because award to any other source

would result in unacceptable delays in fulfilling the Government’s requirements.” AR

143. That determination, in turn, was based upon the assessment that although “the

requirement for a complete and releasable TDP was confirmed during FAR Part 10

market research,” the Agency ultimately may not obtain a timely TDP due to a dispute

with Sikorsky. AR 144 (“At present, the contractor has not refused to deliver the TDP,

however, the Government and contractor are in dispute regarding the data rights and

content of the TDP and software (specifically related to source code).”). The Agency

further explained that “[a]s the CRH Original Equipment Manufacturer (OEM),

Sikorsky Aircraft Corporation has unique and specialized systems engineering and

manufacturing, configuration management, and technical data experience and

expertise.” AR 143. The Agency thus concluded that “Sikorsky has an exclusive

understanding of the design and implementation of the technical architecture,” making

it “the only industry source that can adequately address the Government’s

requirements” in light of the timing requirements and in the absence of a generally

available TDP. Id. The Air Force concluded that “Sikorsky is the only contractor in

possession of the technical expertise, technical data, system-level and sub-system source

code, and detailed knowledge . . . to successfully perform these critical processes and

meet the full range of CU requirements.” Id.

15

The Court tests those factual assertions (and conclusions) in the J&A against the

administrative record, pursuant to the APA’s standard of review. See, e.g.,

AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1334 (Fed. Cir. 2018) (finding

sufficient support in the administrative record to support the J&A’s assertions).

Conclusions that lack a factual basis are, by definition, arbitrary and capricious. See,

e.g., Innovation Dev. Enterprises of Am., Inc. v. United States, 108 Fed. Cl. 711, 728–29 (2013)

(holding that the Air Force’s sole-source award was arbitrary and capricious because,

among other reasons, the J&A rested on factual conclusions that were unexplained and

unsupported by the record).

Despite the fact that the Agency still anticipates delivery of the TDP in “[***],”

the Air Force rather inexplicably “contemplates award of a five-year ordering period

ID/IQ contract with an estimated ceiling of $980.7M” and a “contemplated delivery

period [of] seven years.” AR 142, 361. The Air Force rationalizes this sole-source,

multi-year contract by emphasizing that a six to eight-year delay would result if another

source, lacking a complete TDP, had to reverse-engineer the technology necessary to

complete the anticipated upgrades. AR 144. In that regard, the J&A posits:

FAR Part 10 market research confirmed that there is only one

qualified source (i.e., the OEM) capable of completing all five

phases absent a complete TDP. If the program office was

required to develop an alternative source to the OEM (as

mitigation to TDP availability), the CRH program would

experience an unacceptable delay estimated at a minimum of

6 to 8 years. This delay encompasses the time required to

conduct a source selection (~1 to 2 years); develop a second

source with comparable systems engineering, systems

integration and verification, and field support qualifications;

and qualify and verify the new source’s facilities, personnel,

processes and procedures comparable to Sikorsky’s existing

production infrastructure after selection and contract award

(~5 to 6 years).

AR 144. Furthermore, despite the Agency’s determination that [***] other offerors are

generally capable of performing the anticipated CRH upgrades, the Agency asserts that

those “capability determinations . . . were made with the assumption the TDP would be

available[.]” AR 146 (noting that “each contactor confirmed a need for a comprehensive

TDP, which the Government currently does not have”). The J&A thus ultimately

concludes that “[w]ithout a complete and releasable TDP, . . . award to any contractor

other than Sikorsky at this time would result in unacceptable delays.” AR 146.

The Air Force thus concludes that a sole-source, multi-year award to Sikorsky –

for a contract with an estimated ceiling of almost one billion dollars – is justified based

16

on the current unavailability of a TDP, notwithstanding that the Agency still expects

Sikorsky to deliver the TDP at some point between spring 2021 and [***]. AR 142. In

that regard, while the J&A and the administrative record demonstrate that the timing of

the TDP delivery is somewhat uncertain, the TDP may be available in the near future.

Compare AR 145 (noting that although “incremental deliveries of TDP components

could occur in late-Spring 2021, the timeframe for receipt of the technical data may not

support competitive options”), with AR 146 (“delivery of the [] full TDP . . . is not

anticipated until late spring of 2021”), AR 361 (“[***] is the earliest Sikorsky could

deliver a complete and useable TDP”).

As a threshold matter, the Court finds instructive GAO decisions, holding

expressly that the unavailability of a TDP may provide a rational basis for an agency to

award a sole-source contract. For instance, in Raytheon Co.-Integrated Def. Sys., B-400610,

2009 CPD ¶ 8, 2008 WL 5473622 (Dec. 22, 2008), the GAO held that “[w]here an agency

does not possess a TDP adequate for competition, the agency may procure its

requirement on a sole-source basis from a contractor whose prior experience reduces the

risk to the agency that its needs will not be timely met.” (emphasis added). The GAO

explained:

This is so, even where, given less stringent deadlines, other

contractors might as ably perform. Where the protester is at a

technical disadvantage to the proposed sole-source recipient,

and the record shows that the protester could not remedy its

technological deficit and meet the time frame established by

the agency, we will not object to the proposed sole-source

award.

Raytheon Co.-Integrated Def. Sys., B-400610 at *5, (citing Kollsman, A Div. of Sequa Corp.;

Applied Data Tech., Inc., B-243113, 91-2 CPD ¶ 18, 1991 WL 133926 (July 3, 1991) and Tri–

Ex Tower Corp., B–239628, 90-2 CPD ¶ 221, 1990 WL 278490 at 5 (Sept. 17, 1990)). The

Court agrees with those general principles, but does not agree that they dictate a

decision in the government’s favor here.

In this case, while the Agency’s market research indeed identified [***] other

contractors capable of performing the CRH upgrades, those “capability determinations

. . . were made with the assumption the TDP would be available[.]” AR 146. Again, the

Court agrees with the government that there is no evidence in the record to suggest that

the TDP’s current unavailability is due to anything other than a good faith dispute

between the government and Sikorsky over data rights or the fact that the contractual

deadline for the TDP has not yet arrived. AR 144. Furthermore, there is ample support

in the record for the Agency’s conclusion in its J&A that Sikorsky is currently the only

contractor in possession of the technical data necessary to complete the CRH upgrades

in a timely fashion, if we assume the TDP is never delivered. AR 143. The Court thus

17

finds generally reasonable the Agency’s conclusion that, at present, Sikorsky is the only

contractor capable of performing the upgrades immediately.

But that is not the end of the Court’s inquiry. In that regard, the critical problem

for the Agency is that the J&A simply does not explain how the current unavailability of

a TDP justifies a sole-source award for the entirety of the CRH upgrade contract, which

contemplates a five-year order period and a seven-year delivery period. That omission

is particularly glaring in light of the government’s admission that Sikorsky is

contractually required to provide a full TDP in the near future, at which time [***] other

contractors will be capable of performing the CRH upgrades. Def. MJAR at 5 (citing AR

360). The government’s reliance on the time it would take another contractor to

“replicate the OEM’s knowledge” and perform without a TDP (i.e., six to eight years 12)

may be true, but it is orthogonal to the problem given the Agency’s representations that

the TDP is perhaps imminently forthcoming. The J&A was drafted in 2019, projecting a

TDP delivery of late spring 2021. Tr. 13:21. Even now, counsel for the United States

agrees that “the TDP will be due 90 days after” a system verification – currently

underway – “is complete.” Tr. 13:10–12 (representing that the verification process is

“happening now”). Thus, the government agreed that “it’s going to be a little later than

late spring 2021.” Id. 13:11–12 (emphasis added). Even considering a data rights

dispute between Sikorsky and the government, which “could realistically slip delivery

of the TDP to [***],” the J&A’s conclusion that a sole-source award is necessary for five

years is irrational. AR 46. In fact, the Agency has continuously maintained that “[t]he

Air Force will respond appropriately in the event that [TDP] delivery is not in

accordance with the timetables in the contract[,]” AR 46, which, again, the Court notes

should have occurred as early as spring 2021 and perhaps will occur before [***]. AR

361. In sum, the Agency is simply trying to mitigate the potential harm from “an

anticipated delay” that “hasn’t happened yet” and may never happen. Tr. 13:19–25.

Accordingly, the J&A’s conclusion that a multi-year, sole-source award to

Sikorsky is justified based on the present unavailability of the TDP is entirely

unsupported by the record. Innovation Dev. Enterprises of Am., 108 Fed. Cl. at 728–33

(finding the Air Force’s sole-source award arbitrary and capricious because, among

other reasons, the J&A rested on unsupported factual conclusions); cf. AgustaWestland

N. Am., Inc., 880 F.3d at 1326 (holding that the administrative record provided sufficient

factual support for the J&A’s determination that an award to any other source would

result in unacceptable delays).

To mitigate competition concerns resulting from the present unavailability of the

TDP, the Agency claims to have built a “safety valve” into its intended sole-source

award to Sikorsky that would preserve competition in the future (i.e., once the Agency

has the TDP). Def. MJAR at 15 (citing AR 9). Specifically, the government argues that

12 Tr. 56:11–12 (“[W]ithout a TDP it would take six to eight years, yes.”).

18

“[i]n order to ensure that competition could be achieved at the earliest possible

moment, a formalized process was created and included in the J&A language to ensure

that the J&A is only utilized when absolutely necessary up until such time that [an]

unlimited CRH TDP is available.” Def. MJAR at 8 (citing AR 8–9). The J&A describes

the putative process in great detail:

As set forth in Section Ill above, delivery orders under the

CRH CU ID/IQ will be subject to the following prerequisites:

(1) Determination of data availability to support a full and

open competition for the underlying requirement, (2) If the

CRH's data posture has changed from point of award of the

CU contract, completion of market research to confirm if

competitive options exist in light of the new data baseline, (3)

Documentation, of the above and other circumstances, to

confirm that no other exception. to full and open competition

applies, (4) Receipt of Program Executive Officer approval

prior to Request for Proposal release, and (5) Pursuant to FAR

5.201, release of a notice of contract action in advance of DO

award. Prior to executing a DO without competition, SAFI

AQCC: and SAF/AQCK will be notified that adequate TDPs

are unavailable to conduct a competition. Notification should

include an explanation for the lack of TDP availability and

specifically any rationale provided by Sikorsky. This will

ensure that competition is used to the maximum extent

practicable.

AR 147; see also Tr. 18:10–12 (arguing that the Agency has committed to competing the

delivery orders once Sikorsky provides the complete TDP).

While the Agency’s commitment is clearly designed to give Sikorsky’s would-be

competitors (and perhaps the Court) some measure of comfort, the government admits

that its promise to compete future delivery orders is an empty one that cannot be

enforced. Tr. 18:2–5 (“[I]t’s a voluntary process by high-level Air Force officials

overseeing this process to make sure that these requirements can be competed as soon

as the TDP becomes available.”). Indeed, Sikorsky correctly concedes that no offeror

would be able to challenge later delivery orders due to the task order protest bar. ECF

No. 38 at 2–4. An unenforceable promise to compete future delivery orders, however, is

insufficient to comply with CICA’s requirements. Moreover, when pressed by the

Court as to whether the United States would be prejudiced if the Court made such a

competition scheme enforceable via a permanent injunction, the government replied

that “[i]f the injunction is clear that it’s based on when the TDP becomes available, then

19

that’s exactly what the United States is interested in doing.” Tr. 19:24–20:1. In other

words, the government will not be prejudiced by an injunction that holds the United

States to its commitment. 13

Outside of the Agency’s unenforceable “safety valve,” the Air Force failed to

meaningfully consider other mechanisms – including the use of contract vehicles other

than a sole-source ID/IQ – to mitigate the current unavailability of the TDP. See EOD

Tech., Inc. v. United States, 82 Fed. Cl. 12, 21 (2008) (“[T]he Army’s consideration of

alternatives is at least partially deficient because it does not realistically consider multi-

award contracts.”). 14 During the March 2020 ESIS, the Air Force team briefly discussed

alternative procurement approaches and their associated advantages and

disadvantages, including a multiple award ID/IQ contract. AR 6, 101. According to the

ESIS team, every course of action aside from a sole-source ID/IQ contract did “not

mitigate resolution of technical data availability issues.” AR 101. This conclusion,

however, is a red herring. While a multiple award ID/IQ contract may not mitigate the

current unavailability of the TDP, a multiple award contract vehicle would allow for full

and open competition as soon as the TDP becomes available – a resolution which the

Agency vehemently claims it aims to “achieve[] at the earliest possible moment.” Def.

MJAR at 8 (citing and quoting AR 9).

The only other rationale that the Agency offered for refusing a multiple award

contract vehicle was that it would “[r]equire[] Government integration of effort across

multiple industry sources [and] [i]ncur[] greater administrative burden.” AR 101. The

Court concurs with the GAO, which has rejected an almost identical explanation:

The agency has broad discretion concerning the

establishment of its minimum needs with respect to the

13 The government, in its response brief, argues that “[t]he fact that the Air Force recognized the

need for tailoring the J&A here based on the facts of what led to the sole-source justification,

and that the Air Force ensured there was a formal mechanism to break away from the sole-

source environment as soon as possible, is further evidence that its award decision has a

rational basis and is not arbitrary.” Def. Resp. at 13. Furthermore, the government criticizes

SNC for failing to mention the so-called “safety valve” and asserts that “[t]he purpose of the

safety valve is to make the ID/IQ contract with Sikorsky less than (and, hopefully, significantly

less than) [the $980 million] amount.” Id. This is overselling at its finest. When compared to

SNC’s briefs on the subject, the Court is far more troubled by the government’s suggestion that

there is some sort of “formal mechanism” that would constrain the government’s future

conduct, when all there appears to be are unenforceable planned process statements in the J&A

itself. The Court rejects the government’s reliance on this so-called “safety valve,” which, if

anything, demonstrates the problem with the overly-broad J&A and planned sole-source

award.

14Counsel for the United States admits that the Agency’s J&A did not address “the possibility of

a multiple-award IDIQ.” Tr. 20:7-14.

20

number of years for which a contract is required. Kings Point

Mfg. Co., Inc., B–220224, Dec. 17, 1985, 85–2 C.P.D. ¶ 680.

However, this discretion does not cover the use of an

extended time period for which the agency's justification

provides no basis, but rather implies the need for administrative

convenience in the face of the burden of complying with CICA

requirements as the only reason for the 5–year term.

Pac. Sky Supply, Inc., B-228049, 87-2 CPD ¶ 504, 1987 WL 103141 (Nov. 23, 1987)

(emphasis added). CICA’s mandate for full and open competition is not excused

simply because a sole-source award avoids additional, future effort on the part of the

Agency. 15

The Agency similarly failed to consider whether waiting a short period of time to

allow for the possible resolution of the TDP issue would obviate the putative need for

the sole-source award to Sikorsky. While the J&A repeatedly invokes an immediate

need to begin the upgrades – thus precluding any source other than Sikorsky from

performing the work – this conclusion is critically undermined by the record. The J&A

emphasizes that “[***] of the [***] CU candidates have initiated the acquisition process

for incorporation into the legacy HH-60G system in order to combat real-world threats

which demonstrates the immediate need for incorporation into the CRH.” AR 142. The

J&A thus asserts that “[t]he first capability modification [***] must commence in FY21”

in order to support warfighter needs. AR 142. A contemporaneous Acquisition

Strategy Annex executed in July 2020, however, estimates a contract award “in the First

Quarter of Fiscal Year (FY) 2022.” AR 790. A timeline estimation table similarly shows

a “Pre-Award Phase” extending through the beginning of FY 2022. Id. at Figure 1. The

record thus refutes the J&A’s naked assertion that the initial upgrades are so urgent as

to preclude the Agency’s waiting until the end of FY 2021 or perhaps the first quarter of

FY 2022 before proceeding with any sole-source award.

* * * *

In sum, the Court concludes that SNC has succeeded on the merits of its

15The government also maintains that its preferred contract vehicle – a sole-source ID/IQ to

Sikorsky – is equally as effective as a multiple award contract because once the Air Force

receives the TDP, “it will stop using the sole source ID/IQ to reap the benefits of competing the

requirements.” Def. Resp. at 13 (citing AR 24, 143, 147); see also Tr. 23:6–10 (noting that “because

an IDIQ contract can be terminated very easily for convenience, it’s not impenetrable” and

arguing that “[t]he solutions are really the same in mechanism in that once the TDP becomes

available, the Air Force starts competing these requirements”). If the two contracts really are

“the same in mechanism,” the Air Force should pursue the procurement approach that actually

guarantees competition once the TDP is available.

21

complaint to the extent that: (1) the administrative record demonstrates that there is no

need to proceed with any sole-source contract award to Sikorsky immediately and

perhaps not until late FY 2021 or even early FY 2022; (2) the agency failed to

demonstrate with record evidence why, even if a sole-source contract were needed

immediately, it should cover more than the first three capability upgrades (a new J&A

may be issued for further sole-source contracts or delivery orders if the TDP remains

unavailable); 16 and (3) the J&A does not address why a multiple award ID/IQ contract

would not address the Agency’s timing concerns, particularly where the delivery orders

could be issued on a sole-source basis to Sikorsky until such time that the TDP is

available, a result the government represents it is intent on achieving in any event. 17

The government’s sole-source award to Sikorsky (at least as planned) is, thus, arbitrary

and capricious or otherwise contrary to law.

D. Injunctive Relief Is Warranted

The Tucker Act vests this Court with authority to award “any relief that the court

considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2); see RCFC 65.

In evaluating whether permanent injunctive relief is warranted in a particular case, a

court must consider: (1) whether the plaintiff has succeeded on the merits; (2) whether

the plaintiff has shown irreparable harm without the issuance of the injunction; (3)

whether the balance of the harms favors the award of injunctive relief; and (4) whether

the injunction serves the public interest. PGBA, LLC v. United States, 389 F.3d 1219,

1228–29 (Fed. Cir. 2004); see CW Gov’t Travel, Inc. v. United States, 110 Fed. Cl. 462, 494–

96 (2013) (applying these four factors to an agency award of an ID/IQ contract).

SNC has succeeded on the merits of its central claim. Additionally, SNC has

16Although the J&A may assert that later, planned upgrades are somehow tied to the initial

upgrades, AR 142, the government inexplicably never reconciles how that assertion is consistent

with its promise to compete delivery orders as soon as a TDP is available. Moreover, the

government concedes that “the Air Force never asked any of those qualified competitors, those

capable competitors, are there any of these potential [upgrade] items that you could do without

[the] TDP[].” Tr. 57:15–20. Counsel for the United States asserts that such a question was

unnecessary because “the Air Force concluded” – in the J&A itself – “that the full TDP was

needed” for each and every upgrade. Tr. 58:23–25; 59:1–3. There is no supporting

documentation in the contemporaneous administrative record supporting that conclusion

beyond the J&A’s ipse dixit. Although [***]’s unopposed declaration sheds some additional light

on the subject, ECF No. 5-1 at ¶ 3, it cannot save the Agency’s intended sole-source award given

the Court’s findings.

17An agency’s actions may be arbitrary if, in making a decision, the agency “entirely failed to

consider an important aspect of the problem.” Ala. Aircraft Indus., Inc., 586 F.3d at 1375 (Fed.

Cir. 2009) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).

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demonstrated irreparable harm. This Court consistently has held that the lost

opportunity to compete for a contract constitutes irreparable harm. CW Gov't Travel,

Inc., 110 Fed. Cl. at 494 (“The Court of Federal Claims has repeatedly held that a

protester suffers irreparable harm if it is deprived of the opportunity to compete fairly

for a contract.”); Magnum Opus Techs., Inc. v. United States, 94 Fed. Cl. 512, 544 (2010) (“A

lost opportunity to compete in a fair competitive bidding process for a contract is

sufficient to demonstrate irreparable harm.”); Serco Inc. v. United States, 81 Fed. Cl. 463,

502 (2008) (“[The loss of valuable business], deriving from a lost opportunity to compete

on a level playing field for a contract, has been found sufficient to prove irreparable

harm.”). That is particularly true where, as here, there is a five to seven-year contract

on the line worth upwards of (potentially) almost $1 billion. Accordingly, the Court

holds that the second injunctive relief factor favors SNC. Similarly, an injunction to

enforce procurement law and preserve competition as much as possible serves the

public interest. Ian, Evan & Alexander Corp. v. United States, 136 Fed. Cl. 390, 429 (2018)

(“An important public interest is served through conducting ‘honest, open, and fair

competition’ under the FAR, because such competition improves the overall value

delivered to the government in the long term.” (quoting CW Gov't Travel, Inc., 110 Fed.

Cl. at 495)); CW Gov't Travel, Inc., 110 Fed. Cl. at 495 (“‘The public interest in honest,

open, and fair competition in the procurement process is compromised whenever an

agency abuses its discretion.’” (quoting PGBA, LLC, 57 Fed. Cl. at 663)); see also MVM,

Inc. v. United States, 46 Fed. Cl. 137, 143 (2000) (“Many cases have recognized that the

public interest is served when there is integrity in the public procurement system.”).

Thus, the Court concludes that the fourth factor favors SNC, as well.

What gives the Court pause, however, is the balance of the harms factor,

specifically in light of the statutory admonition that the Court consider national defense

and security in resolving a bid protest or issuing an injunction. See 28 U.S.C.

§ 1491(b)(3); Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 368 (2009)

(quoting 28 U.S.C. § 1491(b)(3) for the proposition that “this Court is statutorily

required to ‘give due regard to the interests of national defense and national security

and the need for expeditious resolution’ in resolving a bid protest”). Although the

United States unsatisfactorily relies almost, if not, entirely upon the ipse dixit of the J&A

in opposing a permanent injunction in this case, the Court is ill-positioned to fashion

injunctive relief that accounts for the legitimate needs of the Air Force. Particularly

given the critical role of the CRH program, the Court is reluctant to impose any

permanent injunction without further factual development regarding the appropriate

scope of relief given the Court’s conclusions. In the meantime, the Agency is enjoined

from proceeding with the sole-source award as contemplated. Although the final terms

of an injunction have yet to be decided, the Court permanently enjoins the United States

from proceeding with any delivery orders without competition, once the TDP is available.

Such relief was all but agreed to by counsel of record for the United States, in any event.

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VI. Conclusion

For the above reasons, the Court GRANTS SNC’s motion for judgment on the

administrative record, DENIES the government’s motion for judgment on the

administrative record, and DENIES Sikorsky’s motion for judgment on the

administrative record.

In light of the Court’s findings and conclusions above, the Court orders the

United States to propose the terms of a permanent injunction that will adequately

address the Court’s conclusions on the merits, as enumerated supra. The government

shall file such proposed terms in a status report on or before July 15, 2021, and shall

meet-and-confer with both SNC and Sikorsky to determine whether either party will

oppose the government’s proposed specific terms of injunctive relief. Should either

party oppose the government’s proposed terms, such party will have one week to file

any responsive brief, which shall not exceed five (5) pages. The government’s

submission of proposed terms of injunctive relief (pursuant to this opinion and order)

shall not, of course, constitute any waiver of its appellate rights.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

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