Facility Healthcare Services, Inc. v. United States

In the United States Court of Federal Claims

No. 21-1978 C

Filed Under Seal: January 20, 2022

Reissued: February 10, 2022 *

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FACILITY HEALTHCARE *

SERVICES, INC., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

*

and *

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PEAK FACILITY SOLUTIONS, *

LLC, *

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Defendant-Intervenor. *

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

William M. Weisberg, Law Offices of William Weisberg PLLC, of McLean, VA, for Plaintiff.

Galina I. Fomenkova, Trial Attorney, Commercial Litigation Branch, Civil Division, Department

of Justice, of Washington, D.C., for Defendant, and Jonathan S. Baker, Attorney-Advisor,

Contract Law Division, Office of General Counsel, Department of Commerce, of Washington,

D.C., of counsel.

John Ryan Prairie, with George E. Petel, Wiley Rein LLP, of Washington, D.C., for Defendant-

Intervenor.

*

Pursuant to the protective order entered in this case, this opinion was filed initially under seal. The parties

provided proposed redactions of confidential or proprietary information. In addition, the Court made minor

typographical and stylistic corrections.

MEMORANDUM OPINION AND ORDER

SOMERS, Judge.

This bid protest challenges the award of a contract to Peak Facility Solutions, LLC,

(“Defendant-Intervenor” or “Peak”) for the provision of services related to the operation and

maintenance of the central utility plant and related facilities for National Institute of Standards

and Technology (“NIST”) campuses in Colorado and Hawaii. ECF No. 1 at 4 (“Compl.”).

Plaintiff, Facility Healthcare Services, Inc., 1 asserts that NIST failed to conduct meaningful

discussions with it regarding its price proposal prior to awarding the contract at issue to

Defendant-Intervenor. For the following reasons, the Court grants in part the government’s

motion to dismiss, as well as grants in part the government’s and Defendant-Intervenor’s

motions for judgment on the administrative record.

BACKGROUND

On March 10, 2020, NIST issued Request for Proposal No. 1333ND20RNB190010

(“RFP”) for “[o]ne firm-fixed-price contract” for the maintenance and operation of facilities at

NIST campuses in Colorado and Hawaii. AR 222. Plaintiff has performed maintenance services

on these campuses for over ten years, most recently under a contract that ended on June 24,

2020. See AR 5. Plaintiff is currently maintaining the relevant facilities on these campuses

under a series of bridge contracts. See Compl. at 1.

The procurement at issue is a best value procurement, with non-price/technical factors

being about equal in importance to price. AR 232. The technical factors include: (1) past

performance; (2) organization, management, and key personnel; and (3) technical approach.

AR 232-33. In terms of price, the RFP provided that NIST would evaluate offerors’ proposed

prices by comparing them with: (1) one another; (2) the independent government cost estimate;

or (3) available historical information. AR 234.

Initially, NIST received five proposals, all of which it deemed technically unacceptable.

AR 1472. Moreover, NIST determined that the price in Plaintiff’s first proposal as neither fair

nor reasonable “in comparison with the [independent government estimate] and competitive

price offers.” Id. Thus, the contract was unawardable at that time, and NIST proceeded to

establish a competitive range that included all five offerors and opened discussions with them “to

give the offerors the opportunity to address weaknesses, significant weaknesses and deficiencies

to bring the proposals to a satisfactory or higher level . . . .” AR 1524. NIST further provided

that “offerors may also make price revisions.” Id.

Plaintiff received its initial discussion letter on February 21, 2021, detailing the

weaknesses and significant weaknesses NIST identified in its proposal for the non-

price/technical factors. AR 1849-50. The letter also noted that “[Plaintiff’s] price proposal . . . is

1

Although Plaintiff captioned its complaint as being brought by “Facilities Health Care Services,” the

Court believes that the complaint was in fact brought by “Facility Healthcare Services.” See AR 260; see also

FACILITY HEALTHCARE SERVS., http://www.fhcare.com/services html (last visited Jan. 13, 2022). The caption has

been adjusted accordingly.

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significantly higher than the Government Estimate" and asked that Plaintiff "review the price

proposal to ensure it is consistent with the technical proposal and ensure there are no eITors."

AR 1852.

On March 5, 2021, Plaintiff submitted a revised proposal, which, among other things,

included a minor price reduction. See generally AR Tab 19. After reviewing the revised

proposal, NIST once again info1med Plaintiff via letter that its price was still "significantly

higher than the Government Estimate." AR 2767. Plaintiff submitted its final proposal on

March 31, 2021, without changing its proposed price. Compare AR 2104 with AR 3010.

The source selection evaluation board ("SSEB") evaluated the final proposals from the five

offerors and rated them from first to last:

TECHNICAL/ NON-PRICE PROPOSAL

OFFEROR

B

TOTAL PRICE ($) Ranking

A Organization, C OVERALL

Past Management & Technical TECHNICAL

Performance Key Personnel Approach

Peak Facility Solutions, LLC (PFS) Neutral Good Good Good $ 11,101,079.52 1st

[Offeror No. 2) Neutral Good Good Good $ 11,450,040.00 2nd

[Offeror No. 3) Satisfactory Good Good Good $ 12,443,080.68 3rd

Facility Healthcare Services, Inc. (FHSI) Good Good Good Good $ 16,624,584.00 4th (Tied)

[Offeror No. SJ Satisfactory Unacceptable Good Unacceptable $ 10,296,504.00 4th (Tied)

IGE $ 11,429,248.60 I

AR 3612. The SSEB concluded that Defendant-Intervenor's proposal represented the best value

to the government based, in pait, on the fact that its price offer was the lowest from a technically

acceptable proposal and the proposal had an overall technical rating of good. AR 3649. The

SSEB also noted that "[n]either [Plaintiffs] higher past perfo1mance rating nor any paiticulai·

features in [its] technical proposal justify the $5,523,504.48 (49.8%) price premium associated

with [Plaintiff's] offer as compared with [Peak's] proposal, non-price and price factors

considered." AR 3650.

On May 21, 2021, NIST awarded the contract to Defendant-Intervenor. See AR 3786.

Plaintiff requested a post-award debrief, which occmTed on May 26, 2021. See generally AR

4083-115. Sho1tly thereafter, Plaintiff filed a post-award bid protest with the Government

Accountability Office ("GAO"). Facility Healthcare Servs., Inc., B-418743.2, B-418743.3, 2021

WL 4191923 (Comp. Gen. Sept. 2, 2021). GAO ultimately dismissed Plaintiffs protest, finding

that NIST conducted adequate and meaningful discussions regai·ding the proposed price, and that

Plaintiff was not an interested pa1ty able to raise challenges to the proposal's technical

evaluation, as there were two intervening offerors with eligible proposals that NIST rated higher

than Plaintiff. See generally id. Plaintiff then filed its protest in this Comt on October 7, 2021.

The paities filed cross-motions for judgment on the administrative record. ECF Nos. 19, 20, 21.

Additionally, the government filed a motion to dismiss Plaintiffs complaint, arguing that

Plaintiff has not established standing to protest the awai·d because it does not have a "direct

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economic interest.” ECF No. 21 at 16-18. The Court has reviewed the pending motions and the

administrative record, and the matter is now ripe for review.

DISCUSSION

A. Plaintiff’s Motion for Judgment on the Administrative Record Fails to Comply with

RCFC 52.1

Regardless of the merits of a protest, a protestor must comply with the Rules of this Court

in making its case. Plaintiff’s filings in support of its motion for judgment on the administrative

record, however, fall irredeemably short of complying with the rule applicable to such motions.

Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) provides that “a

party may move for partial or other judgment on the administrative record and must include in its

motion or supporting memorandum a statement of facts that draws upon and cites to the portions

of the administrative record that bear on the issues presented to the court.” RCFC 52.1(a)

(emphasis added). Plaintiff entirely failed to comply with this clear requirement. Rather, in

moving for judgment on the administrative record, Plaintiff stated that it “will not restate the

factual background of its case, but rather rely upon the facts as set forth in the Complaint.” ECF

No. 19 at 4. The Rules do not permit such a laissez-faire approach.

Moreover, Plaintiff at no point in all of its briefing draws upon or cites, even a single

time, any page or portion of the administrative record. The Court is perplexed as to how Plaintiff

intends to succeed on a motion for judgment on the administrative record, without ever even

citing the administrative record. A motion for “judgment on an administrative record 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). Although “expedited,” that “trial” is not so

expedited that it includes no consideration of the factual (administrative) record before the Court.

Moreover, it is not the Court’s responsibility to scour the over 5,000-page-long administrative

record in search of evidence that may or may not exist to advance Plaintiff’s case. See United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for

truffles buried in briefs.”). Instead, RCFC 52.1 requires, and the very nature of a motion for

judgment on the administrative record necessitates, that Plaintiff direct the Court’s attention to

those portions of the administrative record that support its position. Plaintiff is mistaken if it

believes that the Court’s Rules are mere guidelines there for Plaintiff to follow as it sees fit, even

if Plaintiff thinks ignoring them is in the “interests of brevity.” But see PIRATES OF THE

CARIBBEAN: THE CURSE OF THE BLACK PEARL (Walt Disney Studios Motion Pictures 2003)

(“The Code is more what you’d call guidelines than actual rules.”).

Plaintiff’s chief argument for why it is entitled to judgment on the administrative record

is that it allegedly did not receive the meaningful discussions regarding its price proposal to

which it claims it was entitled under the Federal Acquisition Regulation (“FAR”). This is a

mixed question of law and fact. Plaintiff makes the legal argument—that the FAR in certain

circumstances requires meaningful discussions—but entirely fails to cite, much less draw upon,

the administrative record as to whether any meaningful discussions actually occurred. As to the

factual question of whether meaningful discussions occurred, the Court would be required to

make “factual findings under RCFC [52.1] from the record evidence as if it were conducting a

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trial on the record” in order to find in favor of Plaintiff. Bannum, 404 F.3d at 1357. Yet,

Plaintiff does not point the Court toward any record evidence in support of such a conclusion.

The very brief factual recitation in Plaintiff’s motion fails not only to draw upon the

administrative record but contains only one citation that, unhelpfully, is to Plaintiff’s complaint.

The complaint, of course, was written and filed before Plaintiff’s counsel had access to the

administrative record and thus does not contain any record evidence. Instructing the Court to go

look at the complaint if it is interested in the facts of the case is not the most advisable approach

to advocacy, even were this a motion to dismiss or for summary judgment. It is completely

unacceptable, however, to fail to cite to the administrative record when moving for judgment on

the administrative record, especially when the key factual question is in dispute.

RCFC 41(b) permits the Court to dismiss the case with prejudice for Plaintiff’s failure to

comply with the Rules. Although the Court should probably put no more effort into examining

this case than Plaintiff’s counsel did in pointing the Court towards evidence in the administrative

record to support Plaintiff’s claims, the Court will not take such a draconian approach.

B. Plaintiff Has Not Demonstrated That Its Discussions with NIST Were Inadequate

Although Plaintiff failed to draw upon, or even cite to, the administrative record in

support of its adequacy of discussion argument, the Court will nonetheless address the merits of

this claim. 2 Plaintiff, citing FAR 15.306(d)(3), argues that NIST failed to conduct meaningful

discussions with Plaintiff regarding its price proposal because NIST’s discussion with Plaintiff

did not explain the “actual import of [its] price exceeding the government estimate.” See ECF

No. 19 at 5-10. Plaintiff misses the mark with this argument.

To review, in a bid protest, the relevant inquiry is whether NIST’s action was “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C.

§ 706; see also 28 U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall

review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”).

Regarding meaningful discussions, FAR 15.306 states, in relevant part:

At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of

this section and 15.307(a), indicate to, or discuss with, each offeror still being

considered for award, deficiencies, significant weaknesses, and adverse past

performance information to which the offeror has not yet had an opportunity to

2

Although it is a close call, it appears that Plaintiff has standing to bring its meaningful discussions claim.

Clearly, Plaintiff is an actual bidder for this contract. Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359

(Fed. Cir. 2009) (“[T]o come within the Court of Federal Claims’s § 1491(b)(1) bid protest jurisdiction, [plaintiffs

are] required to establish that it (1) is an actual or prospective bidder and (2) possess[es] the requisite direct

economic interest.”) (citations and internal quotations omitted). While Plaintiff’s proposal tied for fourth place,

Plaintiff has sufficiently—for the purpose of standing—alleged that had it received adequate discussions, Plaintiff

could have further lowered its proposed price. Compl. ¶ 24; but see ECF No. 21 at 17-18. Thus, the Court believes

that for the limited purpose of challenging the alleged lack of meaningful price discussions, Plaintiff has a direct

economic interest in this procurement and, therefore, standing for its price-related claim. See Rex Serv. Corp. v.

United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006)) (“To prove a direct economic interest as a putative prospective

bidder, [the bidder] is required to establish that it had a ‘substantial chance’ of receiving the contract.”).

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respond. The contracting officer also is encouraged to discuss other aspects of the

offeror’s proposal that could, in the opinion of the contracting officer, be altered or

explained to enhance materially the proposal’s potential for award. However, the

contracting officer is not required to discuss every area where the proposal could be

improved. The scope and extent of discussions are a matter of contracting officer

judgment.

48 C.F.R. § 15.306(d)(3). The FAR goes on to state:

Government personnel involved in the acquisition shall not engage in conduct

that —

....

Reveals an offerors price without that offeror’s permission. However, the

contracting officer may inform an offeror that its price is considered by the

Government to be too high, or too low, and reveal the results of the analysis

supporting that conclusion. It is also permissible, at the Government’s discretion,

to indicate to all offerors the cost or price that the Government’s price analysis,

market research, and other reviews have identified as reasonable (41 U.S.C. 2102

and 2107).

48 C.F.R. § 15.306(e)(3).

In short, the FAR required the contracting officer to indicate to, or discuss with, Plaintiff

any deficiencies, significant weaknesses, and adverse past performance information to which

Plaintiff had not had an opportunity to respond. 48 C.F.R. § 15.306(d)(3). In addition, it also

permitted the contracting officer to discuss with Plaintiff other aspects of its proposal that could

be altered or explained to enhance its chance of award or to inform Plaintiff that its price was too

high or too low. 48 C.F.R. §§ 15.306(d)(3), 15.306(e). The problem for Plaintiff is that NIST

twice informed Plaintiff that its price proposal was significantly higher than the government cost

estimate. Apparently, this warning was insufficient for Plaintiff. Rather, Plaintiff asserts that

NIST was required by the FAR essentially to spoon-feed it a directive that it would not be

awarded the contract if it did not lower its price. Unfortunately for Plaintiff, the FAR does not

require such spoon-feeding. WorldTravelService v. United States, 49 Fed. Cl. 431, 439-40

(2001) (citing LaBarge Electronics, Comp. Gen. B–266210, (1996)) (internal quotations

omitted) (“[A]n agency [is not required] to spoon-feed an offeror as to each and every item that

must be revised, added, or otherwise addressed to improve a proposal.”).

To begin, although NIST did inform Plaintiff that its price was too high, it does not

appear that the FAR required NIST to so inform Plaintiff. The FAR only requires the

contracting officer to indicate or discuss with an offeror deficiencies, significant weaknesses, and

adverse past performance information. Price, however, at least for purposes of the solicitation at

issue, does not fit any of those categories. 3 A deficiency is “a material failure of a proposal to

meet a Government requirement or a combination of significant weaknesses in a proposal that

3

The fact that price does not relate to “adverse past performance information” is self-obvious.

6

increases the risk of unsuccessful contract performance to an unacceptable level.” 48 C.F.R.

§ 15.001. And, a significant weakness is “a flaw that appreciably increases the risk of

unsuccessful contract performance.” Id. In other words, deficiency and weakness relate to the

acceptability of aspects of a proposal when evaluated under an adjectival rating system. Even if

price could be adjectively rated, it was not so evaluated for this solicitation; instead, “[p]rice

proposals [were] ranked from lowest to highest in price.” AR 234; see also id. (“The price

proposal will be evaluated but not given an adjectival rating.”). In short, at least for this

solicitation, price was not scored as a strength, weakness, significant weakness, or deficiency;

rather, it was evaluated for reasonableness. 4 Accordingly, as price was not a deficiency,

significant weakness, or past performance information, NIST was not required to discuss price

with Plaintiff under FAR 15.306(d)(3).

What is more, even if NIST was required to indicate or discuss price with Plaintiff, such

an indication or discussion occurred. “[T]here are very few affirmative requirements for

discussions,” CRAssociates v. United States, 102 Fed. Cl. 698, 716 (2011), and the discussions

NIST and Plaintiff engaged in were more than adequate. This procurement had two rounds of

discussion letters: one after initial proposals and another following NIST’s receipt of revised

proposals. See generally AR Tabs 18, 24. In both of NIST’s discussion letters to Plaintiff, NIST

stated that Plaintiff’s “price proposal . . . is significantly higher than the Government Estimate.”

AR 1852, 2767. Better yet, in the final discussion letter to Plaintiff, NIST provided specific line

items that appeared “significantly higher than the Government Estimate.” AR 2767 (“CLINs

0001, 1001, 2001, 3001 and 4001 are significantly higher than the Government Estimate.”). The

caselaw consistently supports a contracting officer’s discretion in how it conducts discussions,

particularly those regarding price. See, e.g., JWK Intern. Corp. v. United States, 279 F.3d 985,

988 (Fed. Cir. 2002) (“All aspects of the discussions, their subject, breadth, and extent, are

within the purview of the contracting officer.”); WorldTravelService, 49 Fed. Cl. at 439

(determining that advisement that an offeror’s prices were “way too high” was sufficient to

qualify as meaningful and fair discussions). Plaintiff was informed twice that its proposed price

was not in line with the government estimate. See AR 1852, 2767. Plaintiff could not have

asked for clearer guidance that its proposed price was too high. See AR 2767 (referencing

specific line items that were “significantly higher” than the government’s estimate).

In sum, even assuming arguendo that NIST was required to conduct discussions, to

prevail on this claim, Plaintiff had to show that its discussions with NIST were misleading or not

meaningful. Advanced Data Concepts, Inc. v. United States, 43 Fed. Cl. 410, 422 (1999).

Plaintiff has not met that burden, and the administrative record, in fact, shows the contrary.

Accordingly, the Court grants the government’s and Defendant-Intervenor’s motions for

4

It appears that proposals were also supposed to be evaluated for price realism, but according to GAO’s

opinion NIST did not do a price realism analysis. Facility, B-418743.3 at 4 (“Facility’s protest argued that the RFP

required the agency to evaluate the proposals for price realism, which the agency admittedly did not do.”) (emphasis

added) (internal citations omitted). Given that Plaintiff’s principal argument here is about price, it is puzzling that

Plaintiff raised but then abandoned its price realism argument before GAO (and did not even raise it in this Court).

Compare id. at 4-5 (“If Facility had prevailed on [its price realism] argument, our Office would have likely

recommend [sic] that the agency reevaluate proposals in accordance with the terms of the solicitation and make a

new best-value decision.”) with id. at 5 (“[W]e dismiss as abandoned . . . the argument that the RFP required

proposals to be evaluated for price realism.”).

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judgment on the administrative record as to the adequacy of discussions regarding Plaintiff’s

price proposal.

C. Plaintiff Lacks Standing to Challenge the Alleged Improper Technical and Past

Performance Evaluations of Defendant-Intervenor and Itself

As with its adequacy of discussions argument, Plaintiff failed to draw upon, or offer any

citation to, the administrative record for its claims related to the improper evaluation of

Defendant-Intervenor’s proposal or its own proposal. The Court would nonetheless address the

merits of this argument, but, unlike with Plaintiff’s adequacy of discussions argument, Plaintiff

has failed to establish that it has standing to challenge the technical and past performance

evaluations.

Because Plaintiff was unsuccessful on its meaningful price discussions challenge, it lacks

the required standing to challenge alleged issues with the technical and past performance

evaluations. See, e.g., Wis. Physicians Serv. Ins. Corp. v. United States, 151 Fed. Cl. 22, 30-31

(2020) (“If, however, an offeror’s proposal is eliminated from the competition . . . the offeror

may only have standing to challenge the agency’s ruling on its elimination—if the elimination

was proper, the protestor will lack standing to challenge subsequent alleged errors in the

procurement such as the agency’s choice of the awardee among the finalists for contract award.”)

(collecting cases). At most, Plaintiff carried (albeit by the thinnest of margins) its burden to

establish that it has standing to challenge the adequacy of the price-related discussions. But

having failed to prevail on its meaningful discussions’ argument, Plaintiff—fourth in line for

award because of its price proposal—lacks standing to challenge other aspects of the

competition.

This is because Plaintiff failed to offer any meaningful challenge to NIST’s evaluations

of the two other technically acceptable proposals that were ranked directly ahead of it. United

States v. Int’l Bus. Machs. Corp., 892 F.2d 1006, 1010-12 (Fed. Cir. 1989) (holding that an

unsuccessful bidder ranked fourth lowest who did not challenge “either the solicitation itself or

the eligibility of the intervening bidders” did not have standing); HVF West, LLC v. United

States, 846 F. App’x 896, 899 (Fed. Cir. 2021) (“[A] least favored price-ranked bidder has

standing only upon mounting a credible challenge to the technical acceptability of the better

price-ranked bidders in line and in front of the protesting party.”); AR 3612 (ranking [Offeror

No. 2] and [Offeror No. 3] as second and third, respectively). However, to have a substantial

chance of award, and thus the direct economic interest necessary for standing, Plaintiff had to

make a credible challenge not only to Defendant-Intervenor’s proposal but to the other two

proposals evaluated ahead of it as well. Yet, Plaintiff does not even mention either of the two

offerors ranked directly ahead of it, much less mount a credible, non-speculative challenge to

NIST’s evaluation of their technical merit or overall value to the government.

By failing to challenge the evaluations of the two other offerors’ proposals (and failing in

its price-related challenge as discussed above), Plaintiff cannot establish that it had a substantial

chance of winning the award and, therefore, standing to challenge any aspect of the technical and

past performance evaluations. See Zeidman Techs., Inc. v. United States, 144 Fed. Cl. 294, 300

(2019) (“Here, ten companies, including plaintiff, submitted Phase I proposals . . . , and their

8

proposals are part of the AR. Despite access to this information, plaintiff makes no significant or

systematic effort to compare or distinguish its proposal from the others.”); cf. Bluewater Mgmt.

Grp., LLC v. United States, 150 Fed. Cl. 588, 608-09 (2020) (holding plaintiff substantively

alleged, with detailed reference to specific contract requirements, that two lower-priced bidders

had non-compliant or deficient bids, which was sufficient to establish that it had a substantial

chance of winning the contract); Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 550 (2014)

(holding plaintiff had standing because it adequately alleged that three lower-priced proposals

were improperly considered technically acceptable).

In other words, even if Plaintiff could establish the errors it alleges in NIST’s evaluations

of its proposal and Defendant-Intervenor’s proposal, its protest would still fail because it did not

even attempt to establish that it would prevail over the two intervening offerors. Accordingly, on

this count, Plaintiff lacks standing.

D. Plaintiff Failed Even to Attempt to Meet its Burden to Demonstrate That It Was

Entitled to Injunctive Relief

The Court will also address Plaintiff’s request for the extraordinary remedy of injunctive

relief in approximately the same number of words that Plaintiff used to argue for such relief. To

say that Plaintiff argued that injunctive relief would be appropriate is an overstatement, as

Plaintiff merely recited the elements of the test for injunctive relief and stated—with effectively

no analysis or factual support—that those burdens are met. See generally ECF No. 19 at 11-12.

As stated in the Court’s order of January 13, 2022, Plaintiff failed to meet its heavy burden to

show that the “drastic and extraordinary remedy” of injunctive relief is warranted. Intel Corp. v.

ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed. Cir. 1993). Thus, even if Plaintiff had carried

its burden on the merits, the Court would be unable to grant injunctive relief given Plaintiff’s

lack of any real advocacy for such relief.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on the administrative record is

DENIED. The government’s motion to dismiss is GRANTED with respect to Count I of

Plaintiff’s complaint, and the government’s and Defendant-Intervenor’s motions for judgment on

the administrative record are GRANTED with respect to Count II of the complaint. The Clerk

shall enter judgment accordingly.

In addition, the parties shall confer to determine agreed-to proposed redactions to this

opinion. On or before February 3, 2022, the parties shall file a joint status report indicating

their agreement on proposed redactions, attaching a copy of those pages of the Court’s opinion

that contain proposed redactions, with all proposed redactions clearly indicated.

IT IS SO ORDERED.

s/ Zachary N. Somers

ZACHARY N. SOMERS

Judge

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