Iap Worldwide Services, Inc. v. United States

In the United States Court of Federal Claims

No. 21-1570C

(Filed: May 25, 2022)

)

IAP WORLDWIDE SERVICES, INC., )

)

Plaintiff,

)

v. )

)

THE UNITED STATES, )

)

Defendant, )

)

and )

)

VECTRUS SYSTEMS CORPORATION,

)

Defendant- )

Intervenor. )

)

Kara L. Daniels, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Plaintiff. Of

counsel were Thomas A. Pettit and Aime JH Joo.

Tanya B. Koenig, Commercial Litigation Branch, Civil Division, United States Department

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

Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and

Reginald T. Blades, Jr., Assistant Director. Of counsel was Lieutenant Colonel Seth Ritzman,

Contract Litigation & Intellectual Property Division, United States Army Legal Services

Agency, Fort Belvoir, VA.

Adam K. Lasky, Seyfarth Shaw LLP, Seattle, WA, for Defendant-Intervenor. Of counsel

were Edward V. Arnold, Stephanie B. Magnell, and Bret C. Marfut, Seyfarth Shaw LLP,

Washington, D.C.

OPINION AND ORDER

SOLOMSON, Judge.

This Court previously concluded that Plaintiff, IAP Worldwide Services, Inc.

(“IAP”), succeeded on the merits of Count I of its amended complaint. ECF No. 54; IAP

Worldwide Servs., Inc. v. United States, -- Fed Cl. --, 2022 WL 1021781, at *46 (2022).

Specifically, the Court held that while Defendant, the United States, acting by and

through the U.S. Department of the Army (the “Army”), as a general matter, has

“discretion to decline to conduct discussions here,” the Defense Federal Acquisition

Regulation Supplement’s (“DFARS”) “presumption favoring discussions must be

overcome with reasoned decision-making not reflected in the administrative record at

issue.” IAP Worldwide Servs., 2022 WL 1021781, at *39 (discussing DFARS 215.306). In

essence, this Court concluded that the Army failed to properly apply DFARS 215.306 in

deciding not to establish a competitive range and, thus, not to engage in discussions with

offerors, including IAP. Id. at *35–39.

Because of the inadequate record regarding appropriate relief, however, the Court

was “unprepared . . . to order the government to go back and redo its procurement

process,” or to otherwise decide the question of equitable or monetary relief absent

“[a]dditional factual development.” Id. at *50 (citing PGBA, LLC v. United States, 389 F.3d

1219, 1229 (Fed. Cir. 2004)). Having “reserve[d] the question of appropriate relief in this

case pending further briefing,” id. at *53, the Court ordered supplemental briefing and

permitted the submission of additional factual declarations to support the parties’

respective positions, ECF No. 52. The parties filed their respective supplemental briefs

and accompanying declarations on April 11, 2022. ECF No. 55 (“Pl. Supp. Br.”); ECF No.

56 (“Def. Supp. Br.”); ECF No. 57 (“Intv. Supp. Br.”).

The parties’ positions could scarcely be further apart. IAP contends that it is

entitled to injunctive relief “requir[ing] the Army to apply DFARS 215.306 correctly and

proceed accordingly.” Pl. Supp. Br. at 10. IAP also argues that this Court should award

bid and proposal costs “in addition to the tailored injunctive relief requested.” Id. The

government opposes IAP across the board, arguing that “in balancing the hardships of

both parties, the Court [should] deny IAP any injunctive, monetary, or other relief.” Def.

Supp. Br. at 1 (emphasis added). To the extent the Court “consider[s] a remand,” the

government urges “the Court [to] refrain from ordering any actions that would interfere

with the Army’s lawful discretion.” Id. at 2.

Defendant-Intervenor, Vectrus Systems Corporation (“Vectrus”), similarly

opposes injunctive relief, but suggests that

[a] “less drastic remedy” exists: the Court could stay

judgment and remand (without injunction) pursuant to [Rule]

52.2(a) [of the Rules of the United States Court of Federal

Claims (“RCFC”)], for the [Army] to determine and document

whether . . . discussions should be conducted under a proper

2

application of DFARS 215.306, and[,] if so[,] whether IAP

should be included in the competitive range.

Intv. Supp. Br. at 5 (quoting Medline Indus., Inc v. United States, 155 Fed. Cl. 522, 541 (2021),

and arguing that a remand would preserve the possibility of an injunction). Vectrus’s

view is that the propriety of an award of bid and proposal costs depends on the remand

results; specifically, the recovery of such costs depends on whether IAP can demonstrate

that it incurred “a needless expense.” Id. at 10 (quoting A Squared Joint Venture v. United

States, 149 Fed. Cl. 228, 232 (2020)).

Ultimately, the Court concludes that while injunctive relief is not warranted here,

Vectrus’s alternative suggestion of a limited remand (i.e., without an injunction) is

appropriate given the relative equities. In that regard, a plaintiff’s burden to justify a

remand is considerably less demanding than what is necessary to support an injunction

ordering the government to begin the procurement process entirely afresh, to conduct

discussions, or otherwise precluding the government from proceeding with a challenged

contract award. The Court orders no such injunctive relief at this time. The Court further

concludes that, at least for now, IAP is not entitled to bid and proposal costs.

I. This Court Has Broad Discretion to Fashion Appropriate Equitable Relief in

Procurement Action Cases Pursuant to 28 U.S.C. § 1491(b)

The parties’ differing positions implicitly raise important questions about the

nature of the equitable remedies at this Court’s disposal in successful actions pursuant to

28 U.S.C. § 1491(b). Because the parties debate the availability and parameters of the

relief this Court may (or should) order in this case, the Court first reviews its various

equitable powers and the distinctions between them. Outside of 28 U.S.C. § 1491(b)

actions and Contract Disputes Act (CDA) cases, see 41 U.S.C. §§ 7101–7109, 1 “[t]he Tucker

Act does not generally confer jurisdiction for actions seeking declaratory or injunctive

relief.” Alvarado Hosp., LLC v. Price, 868 F.3d 983, 999 (Fed. Cir. 2017); see also Maine Cmty.

Health Options v. United States, 590 U.S. ––, 140 S. Ct. 1308, 1330 (2020) (“[T]he Court of

Federal Claims ‘does not have the general equitable powers of a district court to grant

1 The Tucker Act, as amended, separately provides this Court with “jurisdiction to render

judgment upon any claim by or against, or dispute with, a contractor arising under [the CDA]

including . . . nonmonetary disputes.” 28 U.S.C. § 1491(a)(2) (last sentence) (emphasis added); see

also Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1271 (Fed. Cir. 1999) (discussing

availability of declaratory relief in CDA cases); Garrett v. Gen. Elec. Co., 987 F.2d 747, 750 (Fed. Cir.

1993) (“Congress enacted the Federal Courts Administration Act of 1992 . . . , Pub. L. No. 102-572,

106 Stat. 4506,” which “expanded the jurisdiction of the Court of Federal Claims to embrace some

nonmonetary disputes”). The CDA’s provisions are not at issue here.

3

prospective relief[.]’” (quoting Bowen v. Massachusetts, 487 U.S. 879, 905 (1988))). 2

Nevertheless, there are two statutory provisions that provide this Court with equitable

relief powers in actions filed pursuant to 28 U.S.C. § 1491(b).

First, the Tucker Act’s Remand Statute 3 generally provides that “[i]n any case

within its jurisdiction, the court shall have the power to remand appropriate matters to

any administrative or executive body or official with such direction as it may deem

proper and just.” 28 U.S.C. § 1491(a)(2) (emphasis added); see also RCFC 52.2 (“Remand

a Case”). 4

Second, in actions specifically challenging a government agency’s procurement

decision, this Court’s power to order relief pursuant to the Tucker Act, as amended by

the Administrative Dispute Resolution Act (ADRA), Pub. L. No. 104-320, § 12, 110 Stat.

3870, 3874–75 (1996), is codified at 28 U.S.C. § 1491(b)(2): “To afford relief in such an

action, the courts may award any relief that the court considers proper, including declaratory

and injunctive relief except that any monetary relief shall be limited to bid preparation

and proposal costs.” 28 U.S.C. § 1491(b)(2) (emphasis added).

Although one might be tempted to read the remand language in § 1491(a) as

applying only to claims filed pursuant to that subsection, § 1491(b)’s use of the broad

statutory language of “any relief,” 5 particularly when read in conjunction with

§ 1491(a)(2)’s express language of “any case within [the Court’s] jurisdiction,” leads this

Court to conclude that our remand power extends to claims filed under § 1491(b). 28

U.S.C. § 1491(a)(2), (b)(2) (emphasis added); see also Harmonia Holdings Grp., LLC v. United

2“Unlike the district courts . . . the [Court of Federal Claims] has no general power to provide

equitable relief against the Government or its officers.” United States v. Tohono O’Odham Nation,

563 U.S. 307, 313 (2011). And, even in the district courts, the Declaratory Judgment Act, 28 U.S.C.

§ 2201 — which does not apply in the Court of Federal Claims — “creates a remedy, not a

substantive cause of action.” ACA Fin. Guar. Corp. v. City of Buena Vista, 298 F. Supp. 3d 834, 843

(W.D. Va. 2018), aff’d, 917 F.3d 206 (4th Cir. 2019); see also Cabral v. United States, 317 F. App’x 979,

981 (Fed. Cir. 2008) (“Section 2201 of Title 28, the Federal Declaratory Judgment Act, does not

provide any basis for jurisdiction of the Court of Federal Claims.”).

3Act of Aug. 29, 1972, Pub. L. No. 92-415, 86 Stat. 652; see also United States v. Testan, 424 U.S. 392,

404 (1976) (discussing the “remand statute” and holding that it “applies only to cases already

within the [Court of Federal Claims’] jurisdiction”). The Remand Statute is discussed in more

detail infra Section I.C.3.

4 RCFC 52.2 closely tracks the language of 28 U.S.C. § 1491(a)(2).

5 See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219 (2008) (“We have previously noted that ‘[r]ead

naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of

whatever kind.’” (alteration in original) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)));

cf. Brown v. Dep’t of Health & Hum. Servs., 878 F.2d 1446 (Fed. Cir. 1989) (per curiam) (interpreting

“any” to mean “all”).

4

States, 20 F.4th 759, 767 (Fed. Cir. 2021) (“The Court of Federal Claims has relatively broad

authority under 28 U.S.C. § 1491(b)(2) to fashion a remedy . . . .”); DynCorp Int’l, LLC v.

United States, 10 F.4th 1300, 1316 (Fed. Cir. 2021) (approving an agency’s “price-

reasonableness analysis on remand” where the agency “made new determinations” and

still “declined to revisit the overall award”); Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1338–39 (Fed. Cir. 2001) (acknowledging the possibility of

remand in “government procurement” cases pursuant to § 1491(b)).

Accordingly, the Tucker Act’s plain language demonstrates that in an action

pursuant to 28 U.S.C. § 1491(b), this Court may issue at least three types of nonmonetary,

equitable relief 6 orders (or a combination thereof); specifically, this Court may:

(1) remand a matter to an agency for further consideration; (2) issue declaratory relief;

and/or (3) issue injunctive relief. Those are distinct equitable relief mechanisms 7 — with

varying purposes, effects, and requirements — but the lines between them are incapable

of being drawn with scientific precision. This Court thus explains each form of relief, in

reverse order, and then considers how they should be applied in this case.

A. The Court’s Authority to Issue Injunctive Relief

1. General Principles and Parameters

“[A]n injunction either mandates or prohibits particular conduct.” PGBA, 389 F.3d

at 1228 n.6 (citing Perez v. Ledesma, 401 U.S. 82, 124 (1971)); see also Birmingham Fire Fighters

6See Remedy, Black’s Law Dictionary (11th ed. 2019) (defining “equitable remedy” as “[a] remedy,

usu[ally] a nonmonetary one such as an injunction or specific performance, obtained when

available legal remedies, usu[ally] monetary damages, cannot adequately redress the injury. . . .

Also termed equitable relief . . . .”); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 283 (7th Cir.

1993) (“[D]amages [are] the standard ‘legal’ (as distinct from equitable) remedy.”).

7 “Declaratory and injunctive relief are equitable remedies.” League to Save Lake Tahoe v. Tahoe

Reg’l Plan. Agency, 2013 WL 3463192, at *3 (D. Nev. July 9, 2013) (citing Sierra Club v. U.S. Dep’t of

Transp., 245 F. Supp. 2d 1109, 1114 (D. Nev. 2003)). Such equitable relief has also been described

as “specific relief.” Bowen, 487 U.S. at 915 (Scalia, J., dissenting) (differentiating between “money

damages” and “specific relief”). An order remanding a matter to a federal government agency

also constitutes equitable relief. See Perry v. United States, 2014 WL 7366083, at *3 (Fed. Cl. Dec.

23, 2014) (describing an order “pursuant to the Remand Act” as “equitable relief”); Am. Bankers

Ass’n v. Nat’l Credit Union Admin., 934 F.3d 649, 674 (D.C. Cir. 2019) (characterizing remand

without vacatur as an “equitable remedy”); Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of

Eng’rs, 781 F.3d 1271, 1289–90 (11th Cir. 2015) (citing, among other cases, Hecht Co. v. Bowles, 321

U.S. 321, 329 (1944), for the proposition that “the federal courts possess broad discretion to fashion

an equitable remedy” and concluding that whether to remand, with or without vacatur, “falls

within our broad equitable discretion”); Pac. Rivers Council v. Shepard, 2012 WL 950032, at *5 (D.

Or. Mar. 20, 2012) (“[V]acatur and remand are commonly-employed equitable remedies under

the APA[.]”).

5

Ass’n 117 v. City of Birmingham, 603 F.3d 1248, 1254 (11th Cir. 2010) (“[T]he classic

definition of an injunction” is “a clear and understandable directive from the [trial] court,

. . . enforceable through contempt proceedings,” giving “some or all of the substantive

relief sought in the complaint.” (quoting Sierra Club v. Van Antwerp, 526 F.3d 1353, 1358

(11th Cir. 2008))); Sierra Nev. Corp. v. United States, 107 Fed. Cl. 735, 761 (2012) (“An

injunction is a coercive order by a court directing a party to do or refrain from doing

something, and applies to future actions.” (quoting Ulstein Mar., Ltd. v. United States, 833

F.2d 1052, 1055 (1st Cir. 1987))). Generally, “[a]n injunction, by definition, seeks to stop

an ongoing injustice or to prevent future injury.” Gomez v. Dade Cty. Fed. Credit Union, 610

F. App’x 859, 863 (11th Cir. 2015) (emphasis added). 8

Although a trial court has “considerable discretion in framing injunctions,” that

discretion is cabined. Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 169 (3d Cir. 2011).

That is because “[a]n injunction is a drastic and extraordinary remedy, which should not

be granted as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165

(2010); cf. Eracent, Inc. v. United States, 79 Fed. Cl. 427, 432 (2007) (“A permanent injunction

is extraordinary relief and requires stronger evidence than that provided by plaintiff.”).

Accordingly, “injunctive relief should be no broader than necessary to provide full relief

to the aggrieved party.” Meyer, 648 F.3d at 170 (quoting Ameron, Inc. v. U.S. Army Corps

of Eng’rs, 787 F.2d 875, 888 (3d Cir. 1986)); see also Free Speech Coal., Inc. v. Att’y Gen., 974

F.3d 408, 430 (3d Cir. 2020) (critiquing the district court’s grant of an “injunction, an

extraordinary remedy,” as “afford[ing] more relief than necessary”); Consolidation Coal

Co. v. Disabled Miners, 442 F.2d 1261, 1267 (4th Cir. 1971) (calling an injunction an

“extraordinary writ” that “should be tailored to restrain no more than what is reasonably

required to accomplish its ends”).

When there is a question about whether a trial court’s order constitutes an

injunction, “its characterization is not controlling”; rather, “[t]he true nature of the trial

court’s order is what matters[.]” Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356,

358 (Fed. Cir. 1992) (“[A]n injunction is an order requiring a party to do or refrain from

doing something that is an integral part of the very matter in litigation . . . .” (quoting

NTN Bearing Corp. of Am. v. United States, 892 F.2d 1004, 1005 (Fed. Cir. 1989))).

8See also Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996) (“A judgment issued by a court in the

exercise of its equitable . . . jurisdiction is called a decree, and when a decree commands or

prohibits conduct, it is called an injunction.”); United States ex rel. Lutz v. United States, 853 F.3d

131, 139 (4th Cir. 2017) (“Under the general definition, an injunction is a ‘court order commanding

or preventing an action.’” (quoting Injunction, Black’s Law Dictionary (10th ed. 2014))); Moglia v.

Pac. Emps. Ins. Co. of N. Am., 547 F.3d 835, 838 (7th Cir. 2008) (“An injunction is an order of specific

performance on the merits, a remedy for a legal wrong.”).

6

2. Injunctions in Administrative Procedure Act Cases

In Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 861–73 (D.C. Cir. 1970), the D.C.

Circuit held for the first time that government procurement decisions could be challenged

pursuant to the Administrative Procedure Act (APA), Pub. L. No. 89–554, 80 Stat. 378

(1966). While this Court “lacks the general federal question jurisdiction of the district

courts, which would allow it to review [an] agency’s actions and to grant relief pursuant

to the [APA],” Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997), 9 Congress, in

amending the Tucker Act via ADRA, “extend[ed] the jurisdiction of the Court of Federal

Claims to include . . . cases brought under the APA by disappointed bidders, such as the

plaintiff in Scanwell,” Am. Fed’n of Gov’t Emps., AFL-CIO v. United States (AFGE), 258 F.3d

1294, 1302 (Fed. Cir. 2001); see also Impresa, 238 F.3d at 1331–32 (explaining that “cases

upholding district court APA review of procurement decisions are commonly referred to

as the Scanwell line of cases” and that “[u]nder the ADRA, all bid protest actions under

the APA are now reviewed under the standards applied in the Scanwell line of cases”).

Because ADRA sunset district court jurisdiction over such cases as of January 1, 2001,10

ADRA effectively transferred Scanwell jurisdiction to this Court. See AFGE, 258 F.3d at

1300 (“It is the intention . . . to give the Court of Federal Claims exclusive jurisdiction over

the full range of procurement protest cases previously subject to [APA] review in the

federal district courts and the Court of Federal Claims.” (first alteration in original)

(quoting H.R. Rep. No. 104-841, at 10 (1996) (Conf. Rep.))). 11

Accordingly, familiarity with APA jurisprudence helps set the stage for

understanding the relief options available to this Court in actions pursuant to 28 U.S.C.

§ 1491(b). See Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)

(“In bid protest cases filed under the ADRA, the court implements this APA standard [of

9See also Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (en banc) (“[T]he Court of

Federal Claims lacks APA jurisdiction.”); Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370

n.11 (Fed. Cir. 2005) (“[N]o APA review is available in the Court of Federal Claims.”).

10ADRA, Pub. L. No. 104–320, § 12(d), 110 Stat. 3870, 3875 (1996), as enacted, provided that: “The

jurisdiction of the district courts of the United States over the actions described in section

1491(b)(1) of title 28, United States Code . . . shall terminate on January 1, 2001 unless extended

by Congress.”

11 See also Validata Chem. Servs. v. U.S. Dep’t of Energy, 169 F. Supp. 3d 69, 80 (D.D.C. 2016)

(“ADRA’s legislative history . . . evinces an intent to transfer the jurisdiction over Scanwell claims

to the Court of Federal Claims . . . .”); Aero Spray, Inc. v. United States, 156 Fed. Cl. 548, 560 (2021)

(“ADRA’s legislative history reflects some intent to transfer the [APA] jurisdiction over Scanwell

claims to the Court of Federal Claims . . . .”).

7

review] by applying the standard as previously interpreted by the district courts in the

so-called Scanwell line of cases . . . .”). The APA provides, in relevant part, as follows:

The reviewing court shall—

....

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

conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law[.]

5 U.S.C. § 706(2)(A) (emphasis added). 12

Notwithstanding the APA’s “shall . . . set aside” language, 5 U.S.C. § 706(2)(A),

there is no shortage of debate regarding whether a successful APA action requires a

district court to issue injunctive relief — including, at a minimum, the vacatur of the

challenged agency action — or whether the district court retains discretion to issue less

coercive equitable relief (e.g., a declaratory judgment or remand without vacatur). 13 The

United States Court of Appeals for the Ninth Circuit, for example, explained in National

Wildlife Federation v. Epsy that a district court “is not required to set aside every unlawful

agency action,” but rather “[t]he court’s decision to grant or deny injunctive or

12 In contrast to the Tucker Act, “the APA generally waives sovereign immunity from

nonmonetary claims against federal agencies” and “authorizes a court to either compel or set

aside agency action (i.e.[,] to award equitable relief) but does not authorize money damages.”

Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 673 (9th Cir. 1993) (citing 5 U.S.C. § 706); see

also 5 U.S.C. § 702 (authorizing actions “seeking relief other than money damages”).

13 See Stephanie J. Tatham, Admin. Conf. of the U.S., The Unusual Remedy of Remand Without

Vacatur 1 (2014), https://www.acus.gov/sites/default/files/documents/Remand%20Without

%20Vacatur%20Final%20Report.pdf (“[R]emand[] [of] the agency decision without vacatur . . .

appears to have arisen relatively recently and as a matter of judicial instigation. . . . [It] is . . .

remarkable . . . because it can permit agency decisions to remain in effect despite errors that are

prejudicial to the interests of challenging parties.”); Ronald M. Levin, “Vacation” at Sea: Judicial

Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 295 (2003) (“A court’s

decision, after full consideration, to pronounce an agency action illegal, but to allow the action to

continue in effect anyway, is sometimes known as ‘remand without vacation.’”); Nicholas Bagley,

Remedial Restraint in Administrative Law, 117 Colum. L. Rev. 253, 308 (2017) (“Because the Supreme

Court has declined to address its legality, remand without vacatur has become a routine part of

administrative law even as it remains legally vulnerable.”); Benjamin Eidelson, Reasoned

Explanation and Political Accountability in the Roberts Court, 130 Yale L.J. 1748, 1801 (2021)

(explaining that remand without vacatur “has been attacked on two main grounds”: (1) because

“it is said to conflict with the APA’s instruction that a reviewing court ‘shall’ set aside an unlawful

action”; and (2) because “it is thought to leave agencies with little incentive to promptly address

the errors that the court has identified”).

8

declaratory relief under APA is controlled by principles of equity” and must consider

“competing claims of injury.” 45 F.3d 1337, 1343 (9th Cir. 1995) (quoting Amoco Prod.

Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). In a subsequent decision, however, the

Ninth Circuit held that “[u]nder the APA, we must set aside [an agency]’s action if it [is]

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

Nw. Env’t Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 690–91 (9th Cir. 2007)

(emphasis added) (quoting 5 U.S.C. § 706(2)(A)) (declaring agency’s decision arbitrary,

capricious, and contrary to law and setting aside agency action, without discussing the

injunctive relief factors or the need for an injunction). 14

Echoing the latter Ninth Circuit decision, the United States Court of Appeals for

the District of Columbia Circuit has held that the “ordinary practice is to vacate” arbitrary

and capricious agency action. Am. Bankers Ass’n, 934 F.3d at 673–74 (quoting United

Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)). 15 Indeed, several

D.C. Circuit judges view vacatur as a mandatory remedy. See Checkosky v. SEC, 23 F.3d

452, 491–92 & n.35 (D.C. Cir. 1994) (Randolph, J., separate opinion) (cataloging cases

supporting the proposition that “our decisions uniformly—and quite firmly—hold that

[5 U.S.C.] § 706(2)(A) requires us to vacate the arbitrary and capricious agency action”

and explaining that “[o]nce a reviewing court determines that the agency has not

adequately explained its decision, the [APA] requires the court—in the absence of any

contrary statute—to vacate the agency’s action”); Milk Train, Inc. v. Veneman, 310 F.3d 747,

757 (D.C. Cir. 2002) (Sentelle, J., dissenting) (explaining that the APA requires vacatur “in

the clearest possible terms” (quoting Checkosky, 23 F.3d at 492)). 16

In any event, and notwithstanding that “remand without vacatur has been viewed

with some skepticism,” Haw. Longline Ass’n v. Nat’l Marine Fisheries Serv., 288 F. Supp. 2d

7, 11 (D.D.C. 2003), 17 “most . . . courts” agree that the APA does not require a court to

14See also Nw. Env’t Def. Ctr., 477 F.3d at 680–81 (noting that while “Section 706(2) of the APA

gives us the equitable power to ‘set aside’ [agency] action[,] . . . if we conclude that [the agency]

violated the APA by acting arbitrarily, capriciously, or contrary to law, we have the ability and

indeed the juristic duty to remedy [the agency’s] violation” (emphasis added)).

15At least one Ninth Circuit decision reached a conclusion similar to that of the D.C. Circuit. See

All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018) (“Although not

without exception, vacatur of an unlawful agency action normally accompanies a remand.” (citing

Alsea Valley All. v. Dep’t of Com., 358 F.3d 1181, 1185 (9th Cir. 2004))).

16 See also Radio Television S.A. de C.V. v. FCC, 130 F.3d 1078, 1083 (D.C. Cir. 1997) (“When we hold

that an agency has not provided an adequate explanation for its action, the ‘practice of the court

is ordinarily to vacate the [action].’ Indeed, some contend that this is the only option available.”

(alteration in original) (quoting Ill. Pub. Telecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir.

1997))).

17See also Alabama v. Ctrs. for Medicare & Medicaid Servs., 780 F. Supp. 2d 1219, 1232 n.11 (M.D. Ala.

2011) (“The Court recognizes that there is some dispute about whether or not a court has

9

issue an injunction setting aside improper agency action, but rather the “remedy of

remand without vacatur is within a reviewing court’s equity powers under the APA,”

Black Warrior Riverkeeper, 781 F.3d at 1289–90 (quoting Sierra Club, 526 F.3d at 1369

(Kravitch, J., concurring in part and dissenting in part)). In other words, under the APA,

“the federal courts possess broad discretion to fashion an [appropriate] equitable

remedy.” Id. (first citing Hecht Co., 321 U.S. at 329; and then citing Ford Motor Co. v. NLRB,

305 U.S. 364, 373 (1939)).

3. A Successful Plaintiff in a § 1491(b) Case Is Not Automatically Entitled

to Injunctive Relief

Even assuming the APA were read to require — or to ordinarily require — a court

to vacate arbitrary and capricious agency action, a successful plaintiff in an action

pursuant to 28 U.S.C. § 1491(b) is not automatically entitled to such injunctive relief. That

is true notwithstanding that ADRA amended the Tucker Act to require that “[i]n any

action under this subsection, the courts shall review the agency’s decision pursuant to

the [APA] standards set forth in section 706 of title 5.” 28 U.S.C. § 1491(b)(4).

In PGBA, LLC v. United States, the United States Court of Appeals for the Federal

Circuit, our appellate court, squarely addressed that very issue, framing it as “whether

the reference in 28 U.S.C. § 1491(b)(4) to 5 U.S.C. § 706 merely incorporates the [APA’s]

arbitrary and capricious standard of review from [§] 706(2)(A), or whether it means that

the reviewing court must set aside any action it finds arbitrary or capricious without

consideration of the relative harms of such action.” 389 F.3d at 1225. The Federal Circuit

answered this question in the negative, concluding that “section 1491(b)(4) only

incorporates the [APA’s] standard of review of section 706(2)(A) and therefore does not

deprive a court of its equitable discretion in deciding whether injunctive relief is

appropriate.” Id. at 1225–26. Put differently, “in a bid protest action, section 1491(b)(4)

does not automatically require a court to set aside an arbitrary, capricious, or otherwise

unlawful contract award.” Id. at 1226 (emphasis added). 18

Among the reasons for the Federal Circuit’s decision were (1) that the plain

language of the Tucker Act, as amended by ADRA, is merely permissive, not

discretion to remand without vacating.”), aff’d, 674 F.3d 1241 (11th Cir. 2012). The remand

remedy is discussed infra Section I.C.

18See also Tatham, supra note 13, at 28 (analogizing PGBA to a case of “remand without vacatur”).

But cf. Diamond Sawblades Mfrs. Coal. v. United States, 33 C.I.T. 1422, 1446 (2009) (“[A] judicial

holding that an agency decision is unlawful essentially constitutes a vacatur of that

decision . . . .”), aff’d, 626 F.3d 1374 (Fed. Cir. 2010); Timken U.S. Corp. v. United States, 421 F.3d

1350, 1355 (Fed. Cir. 2005) (“Failure to provide the necessary clarity for judicial review requires

that the action be vacated.”).

10

mandatory,19 and (2) that “there is no evidence that Congress intended to abolish the

tradition of equitable discretion in issuing injunctive relief when it enacted . . . ADRA.”

PGBA, 389 F.3d at 1226–27. In so holding, the Federal Circuit rejected the successful

plaintiff’s contention that “Congress enacted section 1491(b) in order to give the Court of

Federal Claims [APA] jurisdiction over bid protests and thereby eliminate the discretion

district courts had historically exercised under [the APA] in determining whether to set

aside arbitrary and capricious awards.” Id. at 1225 & n.4 (explaining that even pursuant

to the APA, “[u]nder Scanwell, if a contract award was determined to be improper,

injunctive relief did not issue as a matter of course”).

In sum, as a precondition for vacating an agency’s contract award or issuing a

similarly coercive order, this Court must apply the standard injunctive relief factors

discussed at some length in the Court’s initial decision in this case. See IAP Worldwide

Servs., 2022 WL 1021781, at *46–49. Those factors require a plaintiff to show that: (1) it

has actually succeeded on the merits; (2) it will suffer irreparable harm if the procurement

is not enjoined; (3) if the procurement action is not enjoined, the harm to plaintiff will

outweigh the harm to the government and third parties; and (4) granting injunctive relief

serves the public interest. PGBA, 389 F.3d at 1228–29; see also Monsanto, 561 U.S. at 157–

59 (“It is not enough for a court considering a request for injunctive relief [in an APA

case] to ask whether there is a good reason why an injunction should not issue; rather, a

court must determine that an injunction should issue under the traditional four-factor

test . . . .”); Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009).

B. The Court’s Authority to Issue Declaratory Relief (in Comparison to

Injunctive Relief)

As with injunctive relief, Congress has expressly empowered this Court to issue

declaratory relief in § 1491(b) cases. See 28 U.S.C. § 1491(b)(2). “Declaratory relief . . . not

only functions as an adjudicatory device but serves a preventive purpose as well.” Dow

Jones & Co. v. Harrods, Ltd., 237 F. Supp. 2d 394, 405 (S.D.N.Y. 2002), aff’d, 346 F.3d 357 (2d

Cir. 2003). In issuing such relief, “[t]he court, in effect, declares the parties’ legal rights

and responsibilities, so that they may conform their future conduct to the law and

minimize the risk of future injury.” Pediatrix Med. Grp. of Fla., Inc. v. Aetna Inc., 2018 WL

4997092, at *6 (S.D. Fla. Aug. 27, 2018) (citing Eisenberg v. Standard Ins. Co., 2009 WL

1809994, at *3 (S.D. Fla. Jun. 25, 2009)). Declaratory relief thus not only “permits the court

. . . to define the legal relationships and adjust the attendant rights and obligations at

issue between the parties so as to avoid the dispute escalating into additional wrongful

conduct” but also “avert[s] greater damages and multiple actions and collateral issues

19“To afford relief in [a bid protest-type] action, the court[] may award any relief that the court

considers proper, including declaratory and injunctive relief . . . .” 28 U.S.C. § 1491(b)(2)

(emphasis added).

11

involving not only the original litigants but potentially other third parties.” Dow Jones,

237 F. Supp. 2d at 405. 20

Declaratory relief is particularly appropriate for the resolution of pure legal issues:

The archetypal situation calling for declaratory relief is a

dispute over contract interpretation. By issuing a declaration,

the court clarifies the respective duties and obligations of the

parties to an agreement before their dispute ripens into an

actual breach of the agreement resulting in damages. But,

critically, the reason contract interpretation lends itself so well

to declaratory relief is because it constitutes a purely legal

analysis (at least where an unambiguous contract is

concerned). On the other hand, declaratory relief is

inappropriate where it requires the court to make factual

determinations regarding past conduct.

Pediatrix Med. Grp., 2018 WL 4997092, at *6 (citations omitted). This reasoning surely

applies with equal force to the interpretation of statutes, regulations, and solicitations. 21

The demarcation between injunctive and declaratory relief is blurry. See Skyworks,

Ltd. v. Ctrs. for Disease Control & Prevention, 542 F. Supp. 3d 719, 723 (N.D. Ohio 2021)

(“Notwithstanding the vintage of declaratory judgments, much about their basic

application and function remains unclear.”), appeal dismissed, 2021 WL 4305879 (6th Cir.

Sept. 21, 2021). While one district court has explained that “[a] declaratory judgment is

an equitable remedy in the nature of an injunction,” id., the consensus is that

20Declaratory relief is therefore a “prospective remedy intended to resolve or mitigate disputes

that may yield later litigation.” EFG Bank AG, Cayman Branch v. AXA Equitable Life Ins. Co., 309 F.

Supp. 3d 89, 99 (S.D.N.Y. 2018); see also Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir.

2012) (noting that a declaratory judgment provides “prospective relief”); Yahoo! Inc. v. La Ligue

Contre Le Racisme Et L’Antisemitisme, 145 F. Supp. 2d 1168, 1172 n.2 (N.D. Cal. 2001) (purpose of

declaratory relief is to “clarify the present and ongoing rights and obligations of the parties”);

Parker v. Citizen’s Bank, N.A., 2019 WL 5569680, at *4 (S.D.N.Y. Oct. 29, 2019) (“The purpose of

declaratory relief is to relieve litigants from the ongoing or imminent harm they may suffer when

their rights vis-à-vis each other are uncertain.”).

21 See Black & Veatch Corp. v. Modesto Irrigation Dist., 827 F. Supp. 2d 1130, 1148 (E.D. Cal. 2011)

(“It is elementary that questions relating to the formation of a contract, its validity, its construction

and effect, excuses for nonperformance, and termination are proper subjects for declaratory

relief.” (quoting Caira v. Offner, 24 Cal. Rptr. 3d 233, 241–42 (Ct. App. 2005))); cf. Cox Commc’ns

PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 1272, 1282 (S.D. Cal. 2002) (“[D]eclaratory judgment

is appropriate where local regulations may violate [a federal statute].”); Oneida Tribe of Indians of

Wis. v. Wisconsin, 951 F.2d 757, 760 (7th Cir. 1991) (noting that declaratory judgment is appropriate

to obtain judicial interpretation of statute).

12

“[i]njunctions and declaratory judgments are different remedies,” Ulstein, 833 F.2d at

1055, such that “a declaratory judgment merits separate consideration from a request for

injunctive relief,” Skyworks, 542 F. Supp. 3d at 725. 22

In distinguishing between declaratory and injunctive relief, most courts appear to

focus on the coerciveness of the order: while “[a]n injunction is a coercive order by a court

directing a party to do or refrain from doing something, and applies to future actions[,]

[a] declaratory judgment states the existing legal rights in a controversy, but does not, in

itself, coerce any party or enjoin any future action.” Ulstein, 833 F.2d at 1055 (emphasis

added); see also Ledesma, 401 U.S. at 111–13 (Brennan, J., concurring in part and dissenting

in part) (discussing the legislative history of the Declaratory Judgment Act and noting

that, according to the Senate Report, “[t]he declaratory judgment differs in no essential

respect from any other judgment except that it is not followed by a decree for damages,

injunction, specific performance, or other immediately coercive decree” (quoting S. Rep.

No. 73-1005, at 2–3, 6 (1934))). 23

Injunctions carry the possibility of subsequent contempt proceedings, while

declaratory judgments do not. Steffel v. Thompson, 415 U.S. 452, 469–71 (1974) (explaining

that declaratory relief “is a much milder form of relief than an injunction” and “is not

ultimately coercive; noncompliance with it may be inappropriate, but is not contempt”

(quoting Ledesma, 401 U.S. at 125–26 (Brennan, J., concurring in part and dissenting in

part))). On the other hand, the mere possibility of contempt proceedings does not provide

a definitive signal that a court order constitutes an injunction. See Cohen v. Bd. of Trustees

of the Univ. of Med. & Dentistry of N.J., 867 F.2d 1455, 1464 (3d Cir. 1989) (“Not every order

22 “Declaratory relief is distinct from injunctive relief.” DiNello v. U.S. Dep’t of Educ., 2006 WL

3783010, at *4 (N.D. Ill. Dec. 21, 2006) (citing Am. Ass’n of Cosmetology Schs. v. Riley (AACS), 170

F.3d 1250, 1254 (9th Cir. 1999)); see also Zwickler v. Koota, 389 U.S. 241, 254 (1967) (“[A] federal

district court has the duty to decide the appropriateness and the merits of the declaratory request

irrespective of its conclusion as to the propriety of the issuance of the injunction.”); Olagues v.

Russoniello, 770 F.2d 791, 803 (9th Cir. 1985) (“There is a considerable difference between ordering

a government official to conduct his activities in a certain manner, and simply pronouncing that

his conduct is unlawful and should be corrected.”).

23Browning Debenture Holders’ Comm. v. DASA Corp., 524 F.2d 811, 816 (2d Cir. 1975) (“Unlike

damages and injunctive relief, which apply significant sanctions and thereby deter future

conduct, a declaratory judgment has no practical effect except as it lays the basis for future relief

of a more coercive nature.”); Southwind Aviation, Inc. v. Bergen Aviation, Inc., 23 F.3d 948, 951 (5th

Cir. 1994) (holding that the district court erred as a matter of law in classifying suit as a

“declaratory judgment action” where plaintiff also requested coercive remedies for the breach of

contract in the form of damages and injunctive relief); Ilodianya v. Cap. One Bank USA NA, 853 F.

Supp. 2d 772, 775 (E.D. Ark. 2012) (“A declaratory judgment is a ‘binding adjudication that

establishes the rights and other legal relations of the parties without providing for or ordering

enforcement.’ An injunction, on the other hand, ‘orders an affirmative act or mandates a specified

course of conduct.’” (quoting Judgment and Injunction, Black’s Law Dictionary (9th ed. 2009))).

13

which may be enforced against a party by civil contempt is such an injunction.”). “If

merely ordering action or inaction were sufficient to constitute an ‘injunction’ . . . , every

discovery order, for instance, would qualify for immediate interlocutory appeal under

the statute.” United States v. Santtini, 963 F.2d 585, 591 (3d Cir. 1992) (citing Hinton v. Dep’t

of Just., 844 F.2d 126, 130 (3d Cir. 1988)). And while some courts have concluded that a

“declaratory judgment is inappropriate where the moving party seeks to adjudicate past

conduct,” SEC v. Credit Bancorp, Ltd., 738 F. Supp. 2d 376, 388 (S.D.N.Y. 2010), injunctions

themselves are frequently future-oriented. 24

Accordingly, “[s]ubstantial uncertainty exists as to ‘the scope of the mandatory

orders that qualify as “injunctions,” [but] . . . it can be assumed that injunctions are orders

that grant or protect at least part of the permanent relief sought as an ultimate result of the

action.’” Santtini, 963 F.2d at 591 (second and third alterations in original) (quoting

16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 3921 (1977)). And just as there is a lack of clarity regarding the line between

declaratory and injunctive relief, “[t]here is a dearth of authority with respect to the

showing required for declaratory relief, but it appears to be less stringent than that

required for injunctive relief.” Sierra Nev. Corp., 107 Fed. Cl. at 761 (citing Ulstein, 833

F.2d at 1055). In deciding whether to issue declaratory relief, courts ordinarily consider

whether: (1) it “will serve a useful purpose in clarifying and settling the legal relations

in issue”; or (2) “it will terminate and afford relief from the uncertainty, insecurity, and

controversy giving rise to the proceeding.” Cont’l Cas. Co. v. Coastal Sav. Bank, 977 F.2d

734, 737 (2d Cir. 1992) (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d

Cir. 1969)).

While declaratory relief is “perhaps milder than an injunction in some respects”

— and while “formally different requirements and standards govern[] each remedy” —

the “practical effect” of both remedies may be similar. Skyworks, 542 F. Supp. 3d at 725–

26. That likely explains why “[c]ourts have on occasion refused to grant declaratory relief

in cases where the effect would be identical to a legally impermissible injunction.”

Ulstein, 833 F.2d at 1055 (first citing Great Lakes Co. v. Huffman, 319 U.S. 293 (1943); and

then citing Samuels v. Mackell, 401 U.S. 66 (1971)). In PGBA, for instance, our appellate

court held that where the plaintiff-appellant had characterized its request for equitable

relief as one for declaratory relief instead of an injunction, this Court properly looked to

the substance of the request. 389 F.3d at 1228. In that case, brought pursuant to 28 U.S.C.

§ 1491(b), plaintiff-appellant “claim[ed] that it [wa]s entitled to further relief in the form

of an order setting aside the [contract] award and thereby stopping performance by [the

government] and [the awardee] under [the contract].” Id. The Federal Circuit held that

24Some courts have delineated a taxonomy of injunctions that, at least implicitly, does not neatly

distinguish between remediating past and future harms. See, e.g., Lampkin v. District of Columbia,

886 F. Supp. 56, 62 (D.D.C. 1995) (injunctions may be “generally characterized as preventive,

structural or reparative”).

14

such a request, although couched as a request for declaratory relief, “is tantamount to a

request for injunctive relief.” Id.; see also Samuels, 401 U.S. at 72, 73 (explaining that when

“the practical effect of the two forms of relief will be virtually identical,” the “propriety

of declaratory and injunctive relief should be judged by essentially the same

standards”). 25

The Federal Circuit in PGBA further explained the conceptual difference between

declaratory and injunctive relief as follows:

“The [United States Supreme Court] has recognized that

different considerations enter into a federal court’s decision

as to declaratory relief, on the one hand, and injunctive relief,

on the other.” Steffel[, 415 U.S. at 469] (citations omitted). For

example, “irreparable injury must be shown in a suit for an

injunction, but not in an action for declaratory relief.”

[Ledesma, 401 U.S. at 123]; Aetna Life Ins. Co. of Hartford,

Conn. v. Haworth, 300 U.S. 227, 241 (1937). A declaratory

judgment is also generally less coercive because it “is merely a

declaration of legal status or rights,” whereas an injunction

either mandates or prohibits particular conduct. Ledesma, 401

U.S. at 124.

PGBA, 389 F.3d at 1228 n.6 (first alteration in original) (emphasis added). Thus, the

Federal Circuit held that “[t]he Court of Federal Claims properly viewed [plaintiff-

appellant]’s suit as an action for injunctive relief” and “did not err in looking to the

traditional equitable factors in determining whether to set aside award of the contract.”

Id. at 1228. 26

25Cf. AACS, 170 F.3d at 1254 (“[I]t seems obvious that the anti-injunction bar cannot be skirted by

the simple expedient of labeling an action that really seeks injunctive relief as an action for

‘declaratory relief.’”).

26The Court concurs with Judge Wolski in Supreme Foodservice GmbH v. United States, however,

that declaratory relief may be appropriate — and the injunctive relief factors avoided — where

declaring an agency decision unlawful would not necessitate a coercive order to return the

procurement to the status quo ante. 109 Fed. Cl. 369, 396–97 (2013) (contrasting an order setting

aside a contract award with a “declaratory judgment that [a CICA stay] override decision is

invalid” because a “declaration that an override was invalid suffices to restore the [default,

statutory] stay of contract performance,” opining that “allow[ing] an arbitrary override to insert

the injunctive relief requirements into the process would convert the CICA stay to something

other than what Congress created,” and distinguishing PGBA at length); see also Alli v. Decker, 650

F.3d 1007, 1014–15 (3d Cir. 2011) (rejecting “the government’s wholesale attempt to equate

declaratory and injunctive relief”).

15

The bottom line is that the Federal Circuit requires this Court — in deciding

whether a particular order constitutes declaratory or injunctive relief — to focus on “the

coercive effect” of the order. PGBA, 389 F.3d at 1228 (quoting Md. Citizens for a

Representative Gen. Assembly v. Governor of Md., 429 F.2d 606, 611 (4th Cir. 1970)); see also

Md. Citizens, 429 F.2d at 611 (“A declaratory judgment is not available as an academic

exercise, and the coercive effect of one here would encounter all of the objections to

injunctive relief.”). Although declaratory relief does not require a finding of irreparable

harm, it is a form of equitable relief and “should be granted only as a matter of judicial

discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Vill., 333

U.S. 426, 431 (1948). In other words, “[i]t is always the duty of a court of equity to strike

a proper balance between the needs of the plaintiff and the consequences of giving the

desired [equitable] relief,” and that is particularly true “where governmental action is

involved.” Id. (“[C]ourts should not intervene unless the need for equitable relief is clear,

not remote or speculative.”). While an order or judgment nominally described as a

declaratory judgment may or may not qualify as an injunction, every injunction implicitly

contains declaratory relief. See Okpalobi v. Foster, 244 F.3d 405, 431 (5th Cir. 2001)

(Higginbotham, J., concurring) (“‘[D]eclaratory relief’ is . . . a conclusion implicit in the

grant of injunctive relief.”). 27

C. The Court’s Authority to Remand a Case to a Government Agency

This Court’s power to remand matters to a federal agency further complicates the

equitable remedies landscape. Before delving into the appropriate use of remands — and

the distinction between them and other forms of equitable relief (i.e., injunctive or

declaratory relief) — it is worth reiterating that the plain language of the Tucker Act, as

amended by the Remand Statute, provides our Court with broad power to send matters

back to an agency for further decision-making: “In any case within its jurisdiction, the

court shall have the power to remand appropriate matters to any administrative or

executive body or official with such direction as it may deem proper and just.” 28 U.S.C.

§ 1491(a)(2) (emphasis added). 28

1. Remand Mechanics

A remand “is the proper remedy where the court doubts that the agency has

properly exercised its discretion but recognizes that it is the agency which should exercise

27 Cf. Cohen v. United States, 650 F.3d 717, 740 n.5 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)

(“[I]njunctive relief typically entails a declaration plus an order to do or refrain from doing

something . . . .”).

28See also Keltner v. United States, 148 Fed. Cl. 552, 558 (2020) (“In 1972, Congress first conferred

the remand power on the Court of Claims — the Federal Circuit’s (and this Court’s) predecessor

— via ‘[t]he remand statute, Pub. L. [No.] 92-415, 86 Stat. 652, now codified as part of 28 U.S.C.

[§] 1491.’” (first and third alterations in original) (quoting Testan, 424 U.S. at 404)).

16

that discretion and not the court.” 3 Charles H. Koch & Richard Murphy, Administrative

Law and Practice § 8:31 (3d ed. 2010 & Supp. 2022). 29

The United States Court of International Trade (“CIT”) — our sister National

Court — has explained the remand remedy as follows:

That a remand determination replaces the original

determination is a notion so basic to administrative law that

few courts have found the need to articulate it expressly. If

the remand determination did not legally replace the original

determination (which the court has, by definition deemed

unlawful or inadequate), orders of remand would be

pointless; the court would have no reason (and likely no

jurisdiction) to review remand determinations. . . . Even

without vacatur, the entire purpose of a remand is to allow the

lower tribunal to rectify or replace a decision that a court has

found to be deficient.

Diamond Sawblades Mfrs. Coal., 33 C.I.T. at 1446 (emphasis added).

But the CIT’s explanation of the remand process is an oversimplification, at least

given the United States Supreme Court’s recent decision in Department of Homeland

Security v. Regents of the University of California, 591 U.S. --, 140 S. Ct. 1891 (2020). Regents

involved an attempt by the Department of Homeland Security (“DHS”) to rescind a 2012

“immigration program known as Deferred Action for Childhood Arrivals, or DACA.”

Id. at 1901 (explaining that the “[DACA] program allows certain unauthorized aliens who

entered the United States as children to apply for a two-year forbearance of removal” and

made them “eligible for work authorization and various federal benefits”). The initial

decision to rescind DACA was contained in a 2017 memorandum issued by then-Acting

29 This Court has generally explained the concept of a “remand” as follows:

[T]he verb “remand” has long been understood as meaning to

return or send back a case to another government body. See

Ballentine’s Law Dictionary 1088 (3d ed. 1969) (“The return of a case

to an administrative agency after a review by the court of a

determination or decision of such agency.”); Black’s Law Dictionary

1457 (4th ed. 1968) (“To send back.”); Webster’s Third New

International Dictionary 1919 (1971) (defined as “to return (a case) . . .

from a court to an administrative agency”); The American Heritage

Dictionary of the English Language 1100 (1969) (“To send or order

back.”).

Pellegrini v. United States, 103 Fed. Cl. 47, 54–55 (2012) (second alteration in original).

17

Secretary of Homeland Security Elaine C. Duke (the “Duke Memorandum”). Id. at 1903.

Various groups filed suit challenging the lawfulness of the rescission, citing the APA and

other grounds. Id. In one such action, the district court permitted DHS to “reissue a

[new] memorandum rescinding DACA, this time providing a fuller explanation for the

determination that the program lacks statutory and constitutional authority.” Id. at 1904.

(quoting Nat’l Ass’n for the Advancement of Colored People v. Trump, 298 F. Supp. 3d 209,

245 (D.D.C. 2018)). Several months later, Duke’s successor, Secretary Kirstjen M. Nielsen,

responded with yet another decisional memorandum (the “Nielsen Memorandum”), but

the district court rejected that second explanation as well. Id. at 1904–05 (citing Nat’l Ass’n

for the Advancement of Colored People v. Trump, 315 F. Supp. 3d 457, 460, 473–74 (D.D.C.

2018)).

The various DACA cases eventually made their way to the Supreme Court.

Regents, 140 S. Ct. at 1905. The Supreme Court explained that “[t]he dispute before the

Court is not whether DHS may rescind DACA,” as “[a]ll parties agree that it may”; rather,

“[t]he dispute is . . . primarily about the procedure the agency followed in doing so.”30

Id. In concluding that DHS’s recission of DACA violated the APA, the Supreme Court

held that the district court’s remand “presented DHS with a choice: rest on the Duke

Memorandum while elaborating on its prior reasoning, or issue a new rescission

bolstered by new reasons absent from the Duke Memorandum.” Id. at 1908. The

Supreme Court found that “Secretary Nielsen took the first path[,] [r]ather than mak[e] a

new decision,” and that the “Nielsen Memorandum was by its own terms not a new rule

implementing a new policy.” Id. Specifically, “[b]ecause Secretary Nielsen chose to

elaborate on the reasons for the initial rescission rather than take new administrative

action, she was limited to the agency’s original reasons, and her explanation ‘must be

viewed critically’ to ensure that the rescission is not upheld on the basis of impermissible

‘post hoc rationalization.’” Id. (quoting Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402,

420 (1971)). The problem for DHS was that “despite purporting to explain the Duke

Memorandum, Secretary Nielsen’s reasoning [bore] little relationship to that of her

predecessor.” Id. According to the Court, while “Acting Secretary Duke rested the

rescission on the conclusion that DACA is unlawful[,] [p]eriod,” the Nielsen

Memorandum offered three new independent reasons to support the rescission of

DACA, “only the first of which [was] the conclusion that DACA is illegal” like the Duke

Memorandum. Id.

30Similarly, in this case, this Court agrees with the government that the Army retains discretion

pursuant to DFARS 215.306 to decline to set a competitive range and engage in discussions but,

as explained in its earlier decision, that discretion is circumscribed by the regulation’s use of the

word “should” instead of “may.” IAP Worldwide Servs., 2022 WL 1021781, at *33 (explaining the

difference between “should” and “may”). The Court’s view, in that regard, is consistent with the

government’s own position in Dell Federal Systems, L.P. v. United States, 906 F.3d 982 (Fed. Cir.

2018). See IAP Worldwide Servs., 2022 WL 1021781, at *34–35 (discussing Dell Federal).

18

The Supreme Court thus concluded that the Nielsen Memorandum mainly

constituted an “impermissible post hoc rationalization[] . . . not properly before us.”

Regents, 140 S. Ct. at 1909. While Justice Kavanaugh dissented in part — asserting, in the

majority’s words, “that requiring a new decision before considering Nielsen’s new

justifications would be ‘an idle and useless formality,’” id. (quoting NLRB v. Wyman-

Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion)) 31 — the majority in Regents

responded that its view of the “[p]rocedural requirement[] . . . serves important values of

administrative law”:

Requiring a new decision before considering new reasons

promotes “agency accountability,” Bowen v. American Hospital

Assn., 476 U.S. 610, 643 (1986), by ensuring that parties and

the public can respond fully and in a timely manner to an

agency’s exercise of authority. Considering only

contemporaneous explanations for agency action also instills

confidence that the reasons given are not simply “convenient

litigating position[s].” Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 155 (2012) (internal quotation marks omitted).

Permitting agencies to invoke belated justifications, on the

other hand, can upset “the orderly functioning of the process

of review,” SEC v. Chenery Corp. [(Chenery I)], 318 U.S. 80, 94

(1943), forcing both litigants and courts to chase a moving

target. Each of these values would be markedly undermined

were we to allow DHS to rely on reasons offered nine months

after Duke announced the rescission and after three different

courts had identified flaws in the original explanation.

Regents, 140 S. Ct. at 1909 (first alteration in original).

Regents thus explains the general purpose and functionality of a remand, as

follows:

It is a “foundational principle of administrative law” that

judicial review of agency action is limited to “the grounds that

the agency invoked when it took the action.” Michigan[ v.

EPA, 576 U.S. 743, 758 (2015)]. If those grounds are

inadequate, a court may remand for the agency to do one of

two things: First, the agency can offer “a fuller explanation of

31Regents, 140 S. Ct. at 1935 (Kavanaugh, J., concurring in the judgment in part and dissenting in

part) (“The Court’s decision seems to allow [DHS] on remand to relabel and reiterate the

substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the

Court’s opinion.”).

19

the agency’s reasoning at the time of the agency action.” Pension

Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 654

(1990) (emphasis added). See also Alpharma, Inc. v. Leavitt, 460

F.3d 1, 5–6 (CADC 2006) (Garland, J.) (permitting an agency

to provide an “amplified articulation” of a prior “conclusory”

observation (internal quotation marks omitted)). This route

has important limitations. When an agency’s initial explanation

“indicate[s] the determinative reason for the final action taken,” the

agency may elaborate later on that reason (or reasons) but may not

provide new ones. Camp v. Pitts, 411 U.S. 138, 143 (1973) (per

curiam). Alternatively, the agency can “deal with the problem

afresh” by taking new agency action. SEC v. Chenery Corp., 332

U.S. 194, 201 (1947) (Chenery II). An agency taking this route

is not limited to its prior reasons but must comply with the

procedural requirements for new agency action.

Regents, 140 S. Ct. at 1907–08 (second alteration in original) (second emphasis added).

At least one subsequent district court decision summarized its understanding of

the Regents rule against post hoc rationalizations, as follows:

In general, “[c]ourts do not . . . give credence to post hoc

rationalizations for agency action, but instead consider only

the regulatory rationale offered by the agency at the time of

such action.” Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp.

2d 210, 241 n.23 (D.D.C. 2011) (cleaned up). But this “‘post

hoc rationalization’ rule is not a time barrier which freezes an

agency’s exercise of its judgment after an initial decision has

been made and bars it from further articulation of its

reasoning.” Loc. 814, Int’l Bhd. of Teamsters v. NLRB, 546 F.2d

989, 992 (D.C. Cir. 1976). Its aim is to prevent courts from

upholding agency action based on “rationales offered by

anyone other than the proper decisionmakers,” id., or

rationales “developed in litigation to justify the decision,”

Nat’l Oilseed Processors Ass’n v. Browner, 924 F. Supp. 1193,

1204 (D.D.C. 1996), aff’d in part and remanded sub nom. Troy

Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997). Thus, it

“applies to rationalizations offered for the first time in

litigation affidavits,” “arguments of counsel,” Loc. 814, 546

F.2d at 992 (internal citation omitted), and any bases for

20

agency action that differ from the ones provided originally,

[Regents, 140 S. Ct. at 1908].

End Citizens United PAC v. Fed. Election Comm’n, 2022 WL 1136062, at *2 (D.D.C. Apr. 18,

2022) (first alteration in original). In that case, the district court considered a “Statement

of Reasons . . . written by the [FEC] Commissioners” — even though it was created after

the lawsuit was filed — because the Statement had been issued by “the very

decisionmakers responsible for the agency action.” Id. The district court thus concluded

that the Statement was “a far cry from an argument of counsel or an affidavit submitted

in connection with litigation.” Id.

The problem with such an approach — focusing on the author(s) of the post hoc

rationalization — is that the Supreme Court in Regents all but expressly rejected it:

While it is true that the Court has often rejected justifications

belatedly advanced by advocates, we refer to this as a

prohibition on post hoc rationalizations, not advocate

rationalizations, because the problem is the timing, not the

speaker. The functional reasons for requiring

contemporaneous explanations apply with equal force

regardless whether post hoc justifications are raised in court by

those appearing on behalf of the agency or by agency officials

themselves.

Regents, 140 S. Ct. at 1909 (emphasis added). 32 Accordingly, the Court held that “[t]he

basic rule here is clear: [a]n agency must defend its actions based on the reasons it gave

when it acted” if it declined to issue a new decision. Id. at 1909–10 (precluding DHS from

“cutting corners to allow [it] to rely upon reasons absent from its original decision”). 33

32The Supreme Court in Regents thus implicitly rejected the following, oft-quoted excerpt from

the D.C. Circuit regarding the post hoc rationalization rule: “[It] is not a time barrier which freezes

an agency’s exercise of its judgment after an initial decision has been made and bars it from

further articulation of its reasoning.” Alpharma, 460 F.3d at 6 (quoting Loc. 814, 546 F.2d at 992);

see also United Food & Com. Workers Union, Loc. No. 663 v. U.S. Dep’t of Agric., 532 F. Supp. 3d 741,

779 (D. Minn. 2021) (expressly recognizing that the “Supreme Court rejected” Alpharma’s

approach and, instead, “prohibited consideration of any rationale that goes beyond the initial

reasons offered by the agency”). But see, e.g., Harmonia Holdings Grp., LLC v. United States, 2022

WL 402399, at *3 (Fed. Cl. Jan. 25, 2022) (“Even though the memorandum was drafted after the

cancellation decision (and after this protest was filed), the Court agrees that the Acting Director’s

memorandum is not improper post-hoc rationalization.”).

33See also In re Vestavia Hills, Ltd., 2021 WL 1165038, at *14 (S.D. Cal. Mar. 26, 2021) (“Courts may

not consider post hoc rationalizations for agency action, whether articulated after-the-fact in court

proceedings or in belated agency explanations. However, an agency may ‘provide an “amplified

21

Following Regents, a trial court generally may “remand [to the agency] with a

choice: either rest on its [first] decision while elaborating on its prior reasoning, or issue

a new decision featuring additional reasons absent from its [earlier] decision.” Fisher v.

Pension Benefit Guar. Corp., 994 F.3d 664, 669–70 (D.C. Cir. 2021). But this general rule

raises yet another question: may a trial court remand a matter to an agency, but limit the

agency to only one of those two options (and thereby preclude the agency from issuing a

new decision)? At least some courts read Regents as preserving a lower court’s equitable

powers to limit an agency’s options on remand. See, e.g., Clarke Health Care Prods., Inc. v.

United States, 152 Fed. Cl. 570, 573–75 (2021) (opining that while Regents “permit[s]”

courts “to remand a matter for a new decision, it does not require courts to do so” and

explaining that “an agency [is] not guaranteed a remand to make a new decision,”

particularly not where it would “effect an end-run around the bar against post hoc

rationalizations”). Indeed, one district court expressly observed that even Regents is far

from a model of clarity: “there is some caselaw (including from Regents itself) indicating

an agency is not automatically entitled to provide a fuller explanation, but that it could

do so if requested by the Court.” Idaho State Snowmobile Ass’n v. U.S. Forest Serv., 2021 WL

4188052, at *4 (D. Idaho Sept. 14, 2021) (noting that in Regents, “the district court had

explicitly ‘stayed its order for 90 days to permit DHS to reissue a memorandum

rescinding DACA, this time with a fuller explanation of the conclusion that DACA was

unlawful’” (quoting Regents, 140 S. Ct. at 1904)). 34

Although this Court agrees that “it appears that most cases . . . interpret the

Supreme Court’s decision in Regents broadly” — i.e., “that agencies get to decide which

route to take upon remand” — it also “appear[s] that the Court [may] indicate which

option (if any) it deems appropriate under the circumstances.” Idaho State Snowmobile

Ass’n, 2021 WL 4188052, at *4–5 & n.8 (concurring with Clarke Health Care, 152 Fed. Cl. at

articulation” of a prior “conclusory” observation’ as long as its explanation is limited to the

original reasons offered.” (quoting Regents, 140 S. Ct. at 1909)).

34In other words, “it appears there are two schools of thought regarding the ‘fuller explanation’

option in agency review cases upon remand” following Regents:

The first interpretation requires an active invitation from the Court

to supplement the record and provide the “fuller evidence”

mentioned in Regents and its progeny. The word “may” in the

phrase “the Court may remand” for one of the two procedures

supports this discretionary proposition.

The second approach appears to leave to the agency the decision of

which method to pursue on remand. This reading is best supported

by the straightforward approach most courts have taken following

Regents and the lack of specific details on remand.

Idaho State Snowmobile Ass’n, 2021 WL 4188052, at *4 (footnote omitted).

22

574). 35 As discussed in more detail infra, this Court need not take a position on this

debate. Suffice it to say, at least on the facts at issue in this case, the Army remains free

to select either path on remand. That makes sense where, as here, even a full-blown

injunction — precluding the agency from proceeding with the contract award to Vectrus

and requiring a new source selection decision (i.e., to correctly apply DFARS 215.306) —

would necessitate, by definition, a new agency decision. 36

Because we still must distinguish between a remand order and other forms of

equitable relief to explain this Court’s resolution of this matter, this Court next turns to

that subject.

2. Remands Distinguished from Other Equitable Relief

There are at least three flavors of remand. A remand may be ordered with or

without: (1) a court’s vacating the challenged agency decision, as explained supra;37

(2) specific instructions; or (3) additional coercive injunctive relief.

For example, even courts that hold that “vacatur of an unlawful agency action

normally accompanies a remand” also hold that courts retain substantial discretion to

fashion a remedy: “[w]hen equity demands, . . . the [agency action] can be left in place

while the agency reconsiders or replaces the action, or to give the agency time to follow

the necessary procedures.” All. for the Wild Rockies, 907 F.3d at 1121 (emphasis added).

In other words, as explained supra, “[a] federal court ‘is not required to set aside every

35One scenario which may justify not permitting an agency flexibility on remand is where the

agency’s “explanation [is not] lacking or inadequate” but instead is simply “incompatible with

the facts in the administrative record.” Idaho State Snowmobile Ass’n, 2021 WL 4188052, at *6. In

such a case, there is “not . . . a failure on the [agency]’s part in explaining its actions as to frustrate

effective judicial review or that would require a ‘fuller explanation’” because “[t]here are

contemporaneous explanations of the agency decision.” Id.

36 This Court recognizes that there is some inherent tension between, on the one hand, the

Supreme Court’s concern with an agency’s post hoc rationalizations and, on the other hand,

permitting an agency to issue a brand new agency decision, particularly where the first one is not

vacated. See Eidelson, supra note 13, at 1802 (explaining that “even a ‘new’ action that comes after

a remand without vacatur is always at risk of being post hoc in the relevant and problematic

sense” and that “remanding without vacatur will mean that even a new, superseding decision

has no real-world impact of the kind that Regents evidently considered important to political

accountability”). But squaring that circle will have to wait for another day.

37 “[T]he terms ‘invalid’ and ‘vacated’ are not synonyms[, which] is why we may label an agency’s

action ‘invalid’ even when we have remanded it for further proceedings without having vacated

it.” Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (citing In re Core

Commc’ns, Inc., 531 F.3d 849, 856 (D.C. Cir. 2008)). In this case, even if the Army’s contract award

decision may be declared invalid, the Court has declined to vacate it.

23

unlawful agency action,’ and the ‘decision to grant or deny injunctive or declaratory relief

under APA is controlled by principles of equity.’” Id. (quoting Espy, 45 F.3d at 1343). That

is particularly true in actions pursuant to 28 U.S.C. § 1491(b), which does not import the

APA’s “shall . . . set aside” language. See PGBA, 389 F.3d at 1225–26. 38

What that suggests, of course — in line with PGBA, 389 F.3d at 1228 — is that a

remand order that does vacate an agency’s contract award decision is tantamount to

injunctive relief and certainly requires, at a minimum, a balancing of the relative equities

and a finding of irreparable harm sufficient to justify the injunction. Other circuit courts

appear to concur in that view. See, e.g., WildEarth Guardians v. U.S. Bureau of Land Mgmt.,

870 F.3d 1222, 1239 (10th Cir. 2017) (“Vacatur of agency action is a common, and often

appropriate form of injunctive relief granted by district courts.”). 39

38 Even the D.C. Circuit describes vacatur without remand as an “equitable remedy,” requiring

that the trial court balance “(1) the seriousness of the deficiencies of the action, that is, how likely

it is the agency will be able to justify its decision on remand[,] and (2) the disruptive consequences

of vacatur.” United Steel, 925 F.3d at 1287 (quoting Heartland, 566 F.3d at 197); see also Allied-Signal,

Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (“The decision whether

to vacate [an unlawful agency action] depends on [1] ‘the seriousness of the [agency] order’s

deficiencies . . . and [2] the disruptive consequences of an interim change that may itself be

changed.’” (quoting Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin.,

920 F.2d 960, 967 (D.C. Cir. 1990))). Indeed, “every court of appeals to consider the issue has

recognized the power of reviewing courts to remand an agency action without vacatur.”

Ackerman Bros. Farms, LLC v. U.S. Dep’t of Agric., 2021 WL 6133910, at *5 (E.D. Mich. Dec. 29, 2021)

(citing, amongst other decisions, Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., 260

F.3d 1365, 1380 (Fed. Cir. 2001)); see also Diné Citizens Against Ruining Our Env’t v. Bernhardt, 923

F.3d 831, 859 (10th Cir. 2019) (describing different remand approaches).

39But, even then, courts are imprecise. In Diné Citizens, for example, the United States Court of

Appeals for the Tenth Circuit — in the very same section equating vacatur and injunctive relief

— also distinguished the two forms of relief, noting that “[b]ecause vacatur is ‘sufficient to redress

[the] injury, no recourse to the additional and extraordinary relief of an injunction [is] warranted.’”

923 F.3d at 859 (third alteration in original) (emphasis added) (quoting Monsanto, 561 U.S. at 166).

Even courts within the Tenth Circuit appear flummoxed by its jurisprudence on the subject:

[While] [t]he Tenth Circuit’s assertion that vacatur is a form of

injunctive relief implies that the traditional standard for injunctive

relief applies to vacatur under the APA[,] . . . [t]he Tenth Circuit has

not, however, performed the traditional four-factor inquiry when

vacating agency action — or ordering a district court to vacate

agency action on remand — under the APA, which suggests that

the Tenth Circuit does not treat vacatur fully as injunctive relief.

N. N.M. Stockman’s Ass’n v. U.S. Fish & Wildlife Serv., 494 F. Supp. 3d 850, 1029–30 (D.N.M. 2020)

(holding that “vacatur under the APA is a form of discretionary relief, akin to an injunction, even

though vacatur is not, strictly speaking, a form of injunctive relief” but concluding that “vacatur

24

On the other hand, orders “for further administrative proceedings” — i.e., mere

“generic remand” orders — may be contrasted with orders either for “equitable relief or

remand with specific instructions.” Earth Island Inst. v. Hogarth, 494 F.3d 757, 770 (9th Cir.

2007) (holding that a remand with coercive instructions should be issued in “rare

circumstances” but that the “government’s intransigence in following Congress’s

mandate” would make a “generic remand . . . not appropriate” (quoting Fla. Power &

Light Co. v. Lorion, 470 U.S. 729, 744 (1985))); see also Miccosukee Tribe of Indians of Fla. v.

United States, 2008 WL 2967654, at *41 (S.D. Fla. July 29, 2008) (“The Supreme Court has

suggested that in rare circumstances, it is appropriate in cases brought under the APA

for courts to go beyond simply remanding a matter back to the agency. . . . Circuit courts

have upheld district court decisions to remand with specific instructions to the agencies

in cases brought under the APA.” (first citing Fla. Power & Light, 470 U.S. at 744; and then

citing Earth Island Inst., 494 F.3d at 770)). 40

3. This Court’s Remand Power in § 1491(b) Cases

The Remand Statute was enacted long before ADRA. Thus, while a plausible

hypothesis may be that this Court’s remand power exists only to support a successful

money claim in a § 1491(a) action (and is unavailable in a § 1491(b) action), 41 the Court,

cannot disregard the plain language of the Remand Act’s reference to “any case within

[the Court’s] jurisdiction.” 28 U.S.C. § 1491(a)(2) (emphasis added). Congress is

presumed to have been aware of the Remand Statute when Congress subsequently

enacted ADRA and did not see fit either to limit the Remand Statute’s reach or to

otherwise alter its language. See Laerdal Med. Corp. v. Int’l Trade Comm’n, 910 F.3d 1207,

1214 (Fed. Cir. 2018) (presuming that Congress was aware of the Federal Rules of Civil

is a form of ‘equitable relief,’” requiring “a ‘balanc[ing] [of] the equities’” (second alteration in

original) (quoting Black Warrior Riverkeeper, 781 F.3d at 1290)), aff’d, 30 F.4th 1210 (10th Cir. 2022);

see also N.M. Health Connections v. U.S. Dep’t of Health & Hum. Servs., 340 F. Supp. 3d 1112, 1175

(D.N.M. 2018) (“[T]he APA’s text indicates that vacatur is the mandatory remedy for arbitrary

and capricious agency action, which is at odds with the Tenth Circuit’s statement that vacatur is

a form of injunctive relief.”).

40Once again, there are few, if any, clean lines. Within the United States Court of Appeals for the

Second Circuit, for example, a remand “with instructions” does not clearly constitute injunctive

relief. See, e.g., Merritt Parkway Conservancy v. Mineta, 424 F. Supp. 2d 396, 424–25 (D. Conn. 2006)

(specifying remand instructions and separately discussing injunctive relief considerations). The

remand instructions in Merritt Parkway may well constitute a “generic remand” insofar as the

district court merely instructed the agency “to address the issues raised by [the] [p]laintiffs and

to conduct further proceedings consistent with [applicable law]” and to “consider [the]

[p]laintiffs’ related [statutory] claims.” Id. at 424.

41See Ardell v. United States, 578 F.2d 1388 (Ct. Cl. 1978) (“But there can be no judgment to which

equitable relief such as plaintiff seeks can append unless there is a present money claim against

the United States. Such a claim is the sine qua non of this court’s jurisdiction.”).

25

Procedure when it amended a statute); Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)

(“We assume that Congress is aware of existing law when it passes legislation.”). 42

The Federal Circuit’s predecessor tribunal, the Court of Claims — the decisions of

which remain binding on this Court 43 — has explained that “[t]he objective of the remand

power is to provide a complete remedy” and that “[t]he deliberate Congressional purpose

in enacting the remand statute was to make it unnecessary for the parties to go to another

court, after the Court of Claims made its decision, to obtain the rights which follow from

the decision.” Hoopa Valley Tribe v. United States, 596 F.2d 435, 447 (Ct. Cl. 1979) (first

citing S. Rep. No. 92-1066, at 2 (1972), as reprinted in 1972 U.S.C.C.A.N. 3116, 3117; and

then citing H.R. Rep. No. 92-1023, at 3–4 (1972)). Thus, the very point of the Remand

Statute is to provide this Court with similar powers to those of the district court,

assuming, of course, that the plaintiff’s claim is otherwise properly within this Court’s

jurisdiction. See id. (“[T]he remand power was available in this court and made it

unnecessary for a party . . . to sue in a district court to challenge the [agency’s]

decision . . . .”); see also Testan, 424 U.S. at 404 (“The remand statute . . . applies only to

cases already within the court’s jurisdiction.”). 44

In any event, as noted supra, the Federal Circuit has all but endorsed the view that

this Court may remand matters in awarding relief in § 1491(b) actions. See DynCorp Int’l,

10 F.4th at 1316; Impresa, 238 F.3d at 1338–39. Because § 1491(b) actions are “case[s] within

[this Court’s] jurisdiction,” 28 U.S.C. § 1491(a)(2), the Remand Statute applies here. And,

even if that interpretation of § 1491(a)(2) is incorrect, this Court holds that the relief

expressly authorized in § 1491(b) is sufficiently broad to encompass remand orders. See

28 U.S.C. § 1491(b)(2) (“To afford relief in such an action, the courts may award any relief

that the court considers proper . . . .” (emphasis added)); see also Macaulay-Brown, Inc. v.

42 See also McCarren v. Sec’y of Dep’t of Health & Hum. Servs., 40 Fed. Cl. 142, 145 (1997) (“Congress

is presumed to be aware of the language and judicial interpretation of pertinent existing law when

it passes new legislation, or makes amendments to existing legislation.” (first citing Miles, 498

U.S. at 32; and then citing Cannon v. Univ. of Chicago, 441 U.S. 677, 696–97 (1979))); In re Nw. Airlines

Corp., 483 F.3d 160, 168–69 (2d Cir. 2007) (reasoning that, in assessing the implications of

amendments to existing statutory schemes, courts may “assume that Congress passed each

subsequent law with full knowledge of the existing legal landscape”).

43See Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 n.2 (Fed. Cir. 1999) (“The decisions of the Court

of Claims are binding precedent for our court’s panels.” (citing South Corp. v. United States, 690

F.2d 1368, 1370 (Fed. Cir. 1982) (en banc))).

44The Federal Circuit has expressly declined to decide “whether an injunction was [effectively]

available pursuant to [this] Court’s ‘power to remand appropriate matters to any administrative

or executive body or official with such direction as it may deem proper and just.’” Todd Constr.,

L.P. v. United States, 656 F.3d 1306, 1311 n.3 (Fed. Cir. 2011) (quoting 28 U.S.C. § 1491(a)(2)). As

discussed below, the critical distinction between injunctive relief, declaratory relief, and a remand

order is the degree of a court order’s coercive effect upon a party.

26

United States, 125 Fed. Cl. 591, 607 (2016) (vacating agency’s decision, remanding matter

to agency pursuant to RCFC 52.2, and requiring the submission of “a status report at or

before the conclusion of the remand period on the status of the remand proceedings”);

Emerald Coast Finest Produce Co. v. United States, 75 Fed. Cl. 549, 556 (2007) (staying and

remanding case to agency, pursuant to RCFC 52.2(a), to “cause to occur an evaluation . . .

and a decision by the [Source Selection Authority]” on various offerors’ proposals).

In another recent bid protest-type action involving the very same plaintiff as this

case, Judge Meyers concluded that “a remand is particularly appropriate to allow the

[agency] to perform the missing analysis, allow appropriate officials to review it, prepare

new decision documents, and move this action to an efficient resolution.” IAP World

Servs., Inc. v. United States, 152 Fed. Cl. 384, 412 (2021). 45 As explained further below, this

Court agrees with Judge Meyers and follows his lead in this case.

****

Surveying the remedies landscape as a whole, this Court concludes that there is a

continuum of equitable relief: the more coercive the order, the more likely it is to qualify

as an injunction — thereby requiring a finding of irreparable harm — while a noncoercive

order interpreting applicable law (or legal instruments) is properly categorized as

declaratory relief. In a similar vein, a generic remand for an agency to comply with the

law (as interpreted by a court) in the first instance is not an injunction, whereas a remand

with vacatur (e.g., an order setting aside a contract award or otherwise prohibiting

contract performance) — or one that is accompanied by detailed, coercive instructions —

may constitute an injunction. 46 Irrespective of the precise type of equitable relief, this

Court must consider the relative equities and balance attendant harms, even where a

plaintiff need not demonstrate irreparable harm (e.g., for declaratory relief or a remand

order).

45See also Insight Pub. Sector, Inc. v. United States, 157 Fed. Cl. 416, 432 (2021) (Roumel, J.) (applying

RCFC 52.2 in bid protest action pursuant to 28 U.S.C. § 1491(b) and concluding that this “Court

may remand without vacatur in scenarios, as here, where ‘[i]t may be that the agency can provide

a reasonable explanation for its decision[,] . . . [b]ut it has not yet done so’” (alterations in original)

(quoting Nat’l Org. of Veterans Advocs., Inc. v. Sec’y of Veterans Affs., 260 F.3d 1365, 1380 (Fed. Cir.

2001))); Syncon, LLC v. United States, 154 Fed. Cl. 442, 452 (2021) (Bruggink, J.) (“While we agree

that this court may not engage in a de novo review of a bid protest action, consideration of

supplemental materials gained during a remand is not improper and does not transform the

arbitrary and capricious standard to a de novo review.” (discussing 28 U.S.C. § 1491(a)(2))).

46See New York v. U.S. Dep’t of Com., 351 F. Supp. 3d 502, 676 (S.D.N.Y.) (concluding that “an

injunction is necessary to make the Court’s vacatur effective” and that such relief “combined with

the preclusive effect (at least as between these parties) of the Court’s factual findings and legal

conclusions, is as good and as ‘effective’” as “declaratory” relief), aff’d in part, rev’d in part and

remanded sub nom. Dep’t of Com. v. New York, 588 U.S. --, 139 S. Ct. 2551 (2019).

27

II. The Court Denies IAP’s Request for an Injunction and, Instead, Remands This

Matter to the Army

IAP previously requested “injunctive relief appropriate to require the Army to

reopen the procurement, including conducting discussions, and making a new award

decision.” IAP Worldwide Servs., 2022 WL 1021781, at *50 (quoting ECF No. 41 at 30). IAP,

in its supplemental brief, “renews its request for tailored injunctive relief,” asking this

Court only to “enforc[e] DFARS 215.306 by ordering the Army to apply it and act

accordingly.” Pl. Supp. Br. at 1, 3. IAP thus no longer seeks an order requiring the Army

to conduct discussions or to make a new award decision — and, once again, IAP disclaims

an order seeking to halt performance of the contract award at issue. Id. at 4 (“Vectrus has

been performing the . . . contract [at issue], and would continue to do so while the Army

applies and acts in accord with DFARS 215.306.”). Moreover, IAP acknowledges that

“the Army may develop some new rationale aiming to justify the current award or to

exclude IAP from discussions.” Id. at 8.

Given that IAP has abandoned its request for an injunction requiring discussions

and a new award decision, this Court holds that it need not decide the issue of irreparable

harm prior to remanding this matter to the Army for further consideration consistent

with the Court’s prior decision in this case. See IAP Worldwide Servs., 2022 WL 1021781,

at *51. Such a generic remand — even if interpreted to include declaratory relief or

accompanied by some limited instructions and bounded with deadlines 47 — does not

transform the relief into an injunction. See, e.g., Nat. Res. Def. Council, Inc. v. U.S. Army

Corps of Eng’rs, 457 F. Supp. 2d 198, 237–38 (S.D.N.Y. 2006) (ordering the agency “to

produce sufficient data to make a reasoned decision, within four months” and explaining

that “[a] remand for reconsideration of the [agency action] rather than an injunction

carefully balances judicial review of the procedures followed with the agency’s

independent decisionmaking power regarding the substantive issues before it”

(emphasis added)); All. for the Wild Rockies v. Zinke, 265 F. Supp. 3d 1161, 1181 (D. Mont.

47See Pac. Rivers Council v. U.S. Forest Serv., 942 F. Supp. 2d 1014, 1018, 1029 (E.D. Cal. 2013)

(holding that APA permits “declaratory relief without setting aside the agency action” and that

“[g]iven the efficacy of declaratory relief, an injunction . . . is not necessary”); Neto v. Thompson,

506 F. Supp. 3d 239, 254 (D.N.J. 2020) (declaring agency action “unlawful, and remand[ing] to the

[agency] for [the] ‘application of the correct legal test’” (quoting MCPC, Inc. v. NLRB, 813 F.3d

475, 490 (3d Cir. 2016))); Button Depot, Inc. v. U.S. Dep’t of Homeland Sec., 386 F. Supp. 2d 1140,

1144, 1148–49 (C.D. Cal. 2005) (granting plaintiffs’ request for a declaratory judgment that the

challenged agency action was arbitrary, contrary to law, and an abuse of discretion and

“remanding this matter to [the agency] for reconsideration”); Pac. Rivers Council, 942 F. Supp. 2d

at 1034 (imposing deadline for “supplemental” agency action “that addresses the analytical

deficiency identified by” the appellate court).

28

2017) (“[U]pon remand, a court should provide the agency with specific instructions to

address its errors.”). 48

Moreover, the remand remedy is the preferred path in this situation. As the

Supreme Court articulated in Florida Power & Light Co. v. Lorion, 470 U.S. at 744, “[i]f the

record before the agency does not support the agency action[] [or] if the agency has not

considered all relevant factors . . . the proper course, except in rare circumstances, is to

remand to the agency for additional investigation or explanation.” Id. (emphasis added).

This Court thus similarly concludes that remand “is most useful when an agency retains

some discretion with regard to the action it took in violation of the APA.” Ramirez v. U.S.

Immigr. & Customs Enf’t, -- F. Supp. 3d --, 2021 WL 4284530, at *5 (D.D.C. 2021) (citing Am.

Hosp. Ass’n v. Azar, 385 F. Supp. 3d 1, 11 (D.D.C. 2019)); see also Huff v. Vilsack, 195 F. Supp.

3d 343, 362 (D.D.C. 2016) (explaining that remand “is generally warranted because courts

prefer that agencies apply their expertise to pertinent issues of fact and law in the first

instance”).

In this case, the decision regarding whether to establish a competitive range and

to engage in discussions, pursuant to DFARS 215.306, lies with the Army in the first

instance. This makes a remand a particularly appropriate remedy here. Cf. I.N.S. v.

Orlando Ventura, 537 U.S. 12, 16 (2002) (“[A] court . . . should remand a case to an agency

for decision of a matter that statutes place primarily in agency hands.”). Indeed, even if

the Tucker Act, as amended by ADRA, “provides authority for the [trial] court to order”

an agency to do something, the Court “must consider whether there are ‘questions which

have not yet been considered by the administrative agency but are nevertheless within

the agency’s authority.’” Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011)

(quoting Presbyterian Hosp. of Dallas v. Harris, 638 F.2d 1381, 1389 (5th Cir. 1981)). The fact

that DFARS 215.306 employs the operative word “should” does not render that provision

toothless, see IAP Worldwide Services, 2022 WL 1021781, at *38, but it does preserve some

amount of agency discretion that this Court must respect, see Dep’t of Com. v. New York,

588 U.S. --, 139 S. Ct. 2551, 2576 (2019) (remanding case “for further proceedings

consistent with this opinion”). 49 Having declared the Army’s Source Selection Decision

48Cf. Monsanto, 561 U.S. at 165–66 (characterizing vacatur of agency decision as a “less drastic

remedy” and contrasting it with “the additional and extraordinary relief of an injunction”);

Friends of Wild Swan v. U.S. Env’t Protec. Agency, 74 Fed. App’x 718, 722 (9th Cir. 2003) (“We have

previously found remand with specific instructions to be an appropriate remedy for APA

violations.”).

49The key distinction between this case and the undersigned’s decision in Oak Grove Techs., LLC v.

United States, is that, in Oak Grove, the “allegations, if proven, would arguably require the

[a]gency to resolicit the . . . contract or engage in discussions because there would be no remaining

awardable offeror,” and, indeed, the Court found that the challenged “proposals — and their

evaluations — suffer[ed] from serious compliance defects under the RFP’s terms.” 155 Fed. Cl.

84, 97, 108 (2021); see also id. at 113–14 (“Discussions, of course, would have enabled [the plaintiff]

29

Document arbitrary and capricious for its failure to properly consider DFARS 215.306, see

IAP Worldwide Services, 2022 WL 1021781, at *35–39, remanding this matter to the Army

for further consideration is not tantamount to an injunction.

In contrast, were this Court to vacate the contract award decision or to instruct the

Army to conduct discussions, such an order would be sufficiently coercive so as to

constitute an injunction. See Sierra Club, 526 F.3d at 1358–59 (“The district court issued

commands of such specificity and breadth that no litigant would dare violate them. If

the [enjoined party] had violated the commands, the district court could have initiated

contempt proceedings, and it is not clear to us that the court would accept ‘But you said

it wasn’t an injunction’ as a defense. ‘In short, we adhere to the time-tested adage: if it

walks like a duck, quacks like a duck, and looks like a duck, then it’s a duck.’” (quoting

BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1337 (11th Cir. 1998))). But where this

Court essentially orders the government merely to “obey the law” via a remand— e.g., to

follow DFARS 215.306, as the Court has explained it — such a directive may be viewed

as including declaratory relief, but it is not an injunction. Cf. S.C. Johnson & Son, Inc. v.

Clorox Co., 241 F.3d 232, 240 (2d Cir. 2001) (“[U]nder Rule 65(d) [of the Federal Rules of

Civil Procedure], an injunction must be more specific than a simple command that the

defendant obey the law.” (first alteration in original) (quoting Peregrine Myan. Ltd. v.

Segal, 89 F.3d 41, 51 (2d Cir. 1996))).

Again, this Court only remands this matter to the Army to ascertain whether its

original determination regarding discussions was correct or to issue a new one, consistent

with the approach the Supreme Court approved in Regents, 140 S. Ct. at 1907–08. On

remand, whether the Army (1) affirms and amplifies its original decision, or (2) issues a

new award decision without discussions, IAP “will be entitled to further judicial review

of those agency determinations.” B & D Land & Livestock Co. v. Veneman, 332 F. Supp. 2d

1200, 1216 (N.D. Iowa 2004); see also Intv. Supp. Br. at 5.

The Court thus agrees with the government that IAP’s putative irreparable harm

is “highly speculative” (particularly in terms of lost profits), Def. Supp. Br. at 4, and, to

the extent it exists at all, does not justify highly coercive relief requiring the government

to engage in discussions or vacating the awarded contract. The Court, however, also

agrees with IAP that “relief can be narrowed to give the Army discretion to act lawfully,

but the Army must still act lawfully.” Pl. Supp. Br. at 9. In balancing the equities and

harms, the Court concludes that IAP should not be denied all equitable relief such that

“IAP will inevitably lose its right to have its proposal lawfully considered for this sizable

contract.” Id. Rather, just as Vectrus proposes, the Court can address the harm that IAP

has suffered — i.e., “the opportunity to be considered for the competitive range, assuming

that the Army could not justify its refusal to engage in discussions” — without ordering

(and presumably all of the offerors) to fully revise their respective proposals to address any

deficiencies in a final proposal revision.”).

30

injunctive relief. Intv. Supp. Br. at 2–3 (quoting IAP Worldwide Servs., 2022 WL 1021781,

at *52); see also id. at 5–6 (proposing a remand and noting that “the [Army] has assured

the Court that should a new award be required ‘that any new contract award will be for

the entire period of performance covered by [the] Solicitation’” (quoting ECF No. 11 at 1–

2)). A remand order is appropriate here because “at most, what IAP lost . . . was the

opportunity to be considered for the competitive range.” IAP Worldwide Servs., 2022 WL

1021781, at *52.

The government, however, not only opposes injunctive relief but also opposes any

relief, including a remand, arguing that “if the Court were to order a remand, the harm

to the Government would be substantial and would be both monetary and

programmatic.” Def. Supp. Br. at 4. If the Court were considering injunctive relief (i.e.,

an order vacating the contract award decision or requiring the formation of a competitive

range and discussions), the Court would agree with the government that IAP’s harm at

this stage is insufficient. But the Court is only ordering a limited remand. The fact that

“conducting discussions would take a minimum of 9–12 months, and would require the

[Army] to divert resources from other important missions . . . to conduct the discussions”

is, thus, inapposite. Id. at 6. Again, the Court is not ordering such coercive and disruptive

relief (at least not for now). Whether considering such timing requirements and

attendant costs requires a new source selection decision, consistent with Regents, this

Court leaves for the Army to decide.

The government further resists “even a [limited] remand solely to justify the

decision not to conduct discussions” because it “would take time, and during that time

there would continue to be instability on the current contract, which may cause additional

contractor turnover, and risk of additional litigation, which could cause further

instability.” Id. at 4–5. The government cites no facts from its supplemental harm

declarations, ECF Nos. 56-1, 56-2, to support those assertions and the Court will not credit

them in the absence of concrete evidence. 50

At the end of the day, the government’s opposition to a remand seems to boil

down to its contention that “any remand would be futile.” Def. Supp. Br. at 5. There are

a few problems with the Court assuming such an outcome. First, the government itself

agrees that “IAP would have the opportunity to protest [any] decision on remand not to

conduct discussions.” Id. Second, the government’s assertion that “the most likely

50The government submitted the additional harm declaration of Dr. Beth M. Rairigh, the Source

Selection Authority for this procurement. ECF No. 56-1. She asserted that “[i]n the event the

Court remands and the Army is ordered to consider DFARS 215.306(c) and further document its

decision whether to conduct discussions with some or all of [the] offerors, the impact will be

significant both financially and operationally . . . .” Id. at 2. All of the harms detailed therein,

however, relate to more specific and coercive injunctive relief that would force the Army to

engage in discussions or to cancel the contract award.

31

outcome of any remand order” is that the Army would reach the same determination not

to engage in discussions, id. at 4, is not creditable under Regents. If the Court were to

deny IAP any relief on that basis, the Court essentially would be permitting a post hoc

justification for the Army’s decision at issue to support some sort of harmless error

finding. The Court cannot permit the Army to supplement the administrative record

with analysis that it did not undertake at the time the Army moved forward in the

procurement to make an award without properly considering DFARS 215.306. See

Regents, 140 S. Ct. at 1909 (explaining that “impermissible post hoc rationalizations . . . are

not properly before us” and holding that “[t]he basic rule here is clear: [a]n agency must

defend its actions based on the reasons it gave when it acted”).

Consistent with Regents, this Court will order the Army either (1) to provide “a

fuller explanation of the agency’s reasoning at the time of the agency action,” or (2) to render

a new agency decision. Id. at 1907–08 (quoting Pension Benefit Guar. Corp., 496 U.S. at 654).

But the fact that the Court will not issue an injunction (e.g., vacating the contract award,

staying performance, or otherwise requiring discussions) is not an excuse for the

government to entirely skip the remand process. 51 To the extent the Army must now

engage in yet further analyses, the Court is sympathetic to the government’s concerns

regarding the additional administrative burden, but the Court still must comply with the

Supreme Court’s binding instructions in Regents. See id. at 1909–10 (explaining “the rule”

that an agency must issue “a new [agency] decision before [a court can] consider[] new

reasons”). 52 Moreover, the additional work that equitable relief will require does not

constitute “legally relevant” harm. Ramirez, 2021 WL 4284530, at *13 (“Because the

government has no interest in acting unlawfully, and because the public has an interest

in having its government follow the law, . . . [t]he question is not how much work it would

take to comply with the proposed injunction, but instead what level of interest the public

and . . . the government have in maintaining the status quo verses obeying the proposed

injunction.”).

This Court further notes, however, that in Florida Power & Light, the Supreme Court

did not suggest that a court must always remand in lieu of issuing injunctive or

declaratory relief (including vacatur), but rather only contrasted remand proceedings

51The government’s position is reminiscent of a classic scene from My Cousin Vinny (20th Century

Fox 1992), in which the fictional Judge Chamberlain Haller tells defense attorney Vinny: “It

appears to me that you want to skip the arraignment process, go directly to trial, skip that, and

get a dismissal.”

52See also Eidelson, supra note 13, at 1771 (arguing that Regents “[r]eformulat[ed] Chenery [I] as an

accountability-forcing rule” and that, as a result, “the Court’s opinion suggests that ‘prejudicial

error’ does not turn solely on the likelihood of the agency’s reinstating the same decision”). But

see id. at 1802 (“Regents’ accountability-forcing logic suggests that the classic benefit of remand

without vacatur—avoiding interim changes for affected parties—is a major strike against that

remedy as well.”).

32

with de novo proceedings in an APA matter. 470 U.S. at 744. The Supreme Court did

nothing more than admonish “[t]he reviewing court [that it] is not generally empowered

to conduct a de novo inquiry into the matter being reviewed and to reach its own

conclusions based on such an inquiry.” Id. (“The APA specifically contemplates judicial

review on the basis of the agency record compiled in the course of informal agency

action . . . .”). 53 In other words, neither Regents nor Florida Power & Light precludes vacatur

or other injunctive relief. Rather, a trial court possesses discretion to issue an injunction

where the traditional injunctive relief factors are met. See PGBA, 389 F.3d at 1226–27.

Here, a remand without vacatur of the Army’s contract award decision is

appropriate because IAP does not pursue an order enjoining the procurement, because

the balance of harms counsels against such an order, see IAP Worldwide Servs., 2022 WL

1021781, at *50 (discussing harm declaration), and because, in any event, there is a

reasonable possibility that the government can justify its decision not to engage in

discussions, see Haw. Longline Ass’n, 288 F. Supp. 2d at 10 (“A court’s decision to remand

without vacatur is determined, in no small part, by considering whether the deficiencies

that pervade the agency’s actions are likely to be rectified.”); Allied-Signal, 988 F.2d at

150–51 (remand without vacatur is sometimes appropriate, depending on the

“seriousness” of the agency error and the “disruptive consequences” of vacatur (quoting

Int’l Union, 920 F.2d at 967)).

That said, and consistent with the rationale underlying Florida Power & Light, the

government cannot forever avoid vacatur or other injunctive relief by seeking infinite

remands. See Earth Island Inst., 494 F.3d at 770 (rejecting further “remand for more

studies” and instead agreeing “with the district court that the government’s intransigence

in following Congress’s mandate renders this case one of the rare circumstances where

generic remand is not appropriate”); see also Tippins v. United States, 157 Fed. Cl. 284, 291

(2021) (“Rote remand scenarios . . . only encourage agency decision-makers to initially

avoid articulating justifications in any degree of detail. Why provide a full explanation

of the agency’s reasoning if, when later challenged, a second opportunity is routinely

provided to supply a more fulsome rationale?”). In other words, at some point, “[f]or the

legal error identified . . . , vacatur is clearly warranted.” Long Island Power Auth. v. FERC,

27 F.4th 705, 717 (D.C. Cir. 2022) (“The ‘seriousness’ of agency error turns in large part on

‘how likely it is the agency will be able to justify its decision on remand.’” (quoting

Heartland, 566 F.3d at 197)); see also Comcast Corp. v. FCC, 579 F.3d 1, 9 (D.C. Cir. 2009) (the

equitable factor of disruptive consequences matter “only insofar as the agency may be

able to rehabilitate its rationale”). And where a statutory or regulatory provision requires

a particular outcome, this Court may order an agency to act. See Long Island Power Auth.,

53Moreover, “[b]ased on [Florida Power & Light] and a court’s equitable powers in general, Circuit

courts have upheld district court decisions to remand with specific instructions to the agencies in

cases brought under the APA.” Miccosukee Tribe, 2008 WL 2967654, at *41; see also 28 U.S.C.

§ 1491(b)(2) (referring to “any relief”).

33

27 F.4th at 717 (“[The agency] cannot rehabilitate its preferred interpretation on

remand.”).

In this case, whether the Court ultimately will have to issue an injunction ordering

the agency to establish a competitive range or to conduct discussions remains to be seen.

The government itself, however, at the outset of this case, recognized the possibility of

injunctive relief. The Court reminds the government — as did Vectrus, Intv. Supp. Br. at

5–6 — that the government previously agreed with IAP as follows:

[T]he Army intends to proceed with performance of the

challenged contract awarded to Vectrus . . . , with

performance to re-commence on July 16, 2021, upon

expiration of the current bridge contract. In exchange, if

plaintiff, [IAP], is successful on the merits, and the Court

declares the award to Vectrus unlawful, the Government

agrees to promptly act in accordance with the Court’s order

and agrees that any new contract award will be for the entire

period of performance covered by Solicitation No.

W91RUS19R0018, subject to the Government’s actual needs

and available funding.

The parties also agree that plaintiff’s claims regarding award

of the . . . contract [at issue] are not in any way limited or

jeopardized by performance of the new contract as described

and no party shall argue that the award and performance

prevents the Court from providing appropriate injunctive

relief consistent with the Court’s bid protest authority in

response to IAP’s protest.

ECF No. 11 at 1–2.

The fact that this Court has an independent duty to consider national security is,

in part, why an otherwise improper award — based on the Army’s failure to follow

DFARS 215.306 — will remain in place, at least for now. See 28 U.S.C. § 1491(b)(3) (“In

exercising jurisdiction . . . , the courts shall give due regard to the interests of national

defense and national security and the need for expeditious resolution of the action.”); IAP

Worldwide Servs., 2022 WL 1021781, at *50 (crediting harm declaration). On remand, the

Army should consider the foregoing, jointly-made representations to this Court,

particularly if the Army concludes that the timing of any new agency decision is

significant.

34

III. Prejudice Redux

In the course of opposing equitable relief, the government suggests that IAP

cannot demonstrate irreparable harm because IAP has not demonstrated prejudice. Def.

Supp. Br. at 8 (citing G4S Secure Integration LLC v. United States, -- Fed. Cl. --, 2022 WL

1053667 (2022)). The Court writes further here to amplify its explanation of why the

Army’s arbitrary and capricious conduct is prejudicial to IAP, and why the Court’s

selected remedy is narrowly tailored to address that prejudice.

This Court analyzes prejudice with respect to the merits of a plaintiff’s complaint

— as opposed to standing purposes — with the Federal Circuit-prescribed lens:

We review bid protest cases according to the standards in

5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). Section 706 instructs

courts that “due account shall be taken of the rule of

prejudicial error.” 5 U.S.C. § 706. That rule calls on courts to

apply the “same kind of ‘harmless-error’ rule that courts

ordinarily apply in civil cases.” See Shinseki v. Sanders, 556

U.S. 396, 406 (2009) (discussing identical language in 38 U.S.C.

§ 7261(b)(2) and noting that “Congress intended [that statute]

. . . to ‘incorporate a reference’ to the APA’s approach”).

Similarly, the federal harmless error statute instructs courts to

disregard “errors or defects which do not affect the

substantial rights of the parties.” 28 U.S.C. § 2111. . . . [T]o

prevail in its bid protest, [a plaintiff] must “show a significant,

prejudicial error in the procurement process,” meaning it

must show that there is a greater-than-insignificant chance that

[the agency] would have issued [an] RFQ as a set-aside for

small businesses had it not committed the alleged errors.

[Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367

(Fed. Cir. 1999)].

Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x 221, 228 (Fed. Cir. 2019)

(first and second alterations in original) (emphasis added).

In American Relocation Connections, L.L.C. v. United States, the plaintiff-appellant,

American Relocation Connections, L.L.C. (“ARC”), argued that Small Business

Administration (“SBA”) regulations required Customs and Border Protection (“CBP”) to

consult with the SBA during the market research phase for a particular request for

quotations (“RFQ”) and further “allege[d] that if that consultation had occurred, CBP

would have likely issued the . . . RFQ as a set-aside for small businesses.” 789 F. App’x

at 227. The Federal Circuit concluded that while the plaintiff had standing to pursue its

claims, the government, on the merits, did not commit prejudicial error. Id. at 228.

35

Rather, the court “agree[d] with the Court of Federal Claims that ARC cannot show that

CBP might have issued the . . . RFQ as a set-aside for small businesses even if it had

consulted with the SBA.” Id. Applying the “clearly erroneous” standard of review to the

trial court’s findings of fact, the Federal Circuit held that “even if CBP had consulted with

the SBA during its market research, it would not have issued the [challenged] RFQ as a

small business set-aside because there were not enough qualifying small businesses to

compete under the applicable [North American Industry Classification System

(“NAICS”)] code.” Id. at 228–29 (concluding that “ARC fails to point to any record

evidence that suggests otherwise”). Moreover, because the plaintiff failed to appeal

CBP’s NAICS code designation, ARC “waived any challenge to the NAICS code and

[could not] now claim that CBP should or would have chosen a different NAICS code

had it consulted with the SBA.” Id. at 229 (“CBP’s choice of NAICS code 531210 is fatal

to ARC’s claim of prejudice here.”).

IAP meets the Federal Circuit’s prejudice test articulated in American Relocation

Connections for the simple reason that “there is a greater-than-insignificant chance” that,

based on the record evidence, the Army would have established a competitive range and

conducted discussions, including with IAP, had the Army correctly applied DFARS

215.306. IAP Worldwide Servs., 2022 WL 1021781, at *35–39. 54 In particular, this Court

made the following critical factual findings in siding with IAP on the merits of Count I of

its amended complaint: (1) “the mere existence of the draft [evaluation notices (“ENs”)]

tends to demonstrate” that discussions were warranted; (2) that the “cost team’s report

strongly suggested a need for discussions”; (3) “the ENs . . . were updated, inexplicably,

as late as December 22, 2020, just days before the Army formally notified Vectrus of its

award”; (4) an evaluation panel “developed draft ENs specifically addressing the

weaknesses, deficiencies, and risks that culminated in the Army’s finding that IAP’s

proposal was not awardable”; (5) that “there is nothing in the record supporting the

government’s implicit assertion that there was some inherent obstacle” to IAP’s

addressing the ENs; and (6) “the Army’s Acquisition Plan for the procurement at issue

anticipated that the Army would conduct discussions” as did the Source Selection Plan.

Id.

APA prejudice rules, consistent with those the Federal Circuit adopted in American

Relocation Connections, 789 F. App’x at 228, similarly support this Court’s conclusion that

the Army’s failure to properly apply the DFARS provision at issue constituted legally

cognizable prejudice to IAP. For example, the D.C. Circuit repeatedly has held that “an

54See also Wages & White Lion Invs., L.L.C. v. U.S. Food & Drug Admin., 16 F.4th 1130, 1137–38 (5th

Cir. 2021) (rejecting agency’s “statement [as] conclusory, unsupported, and thus wholly

insufficient”); United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 562–63 (D.C. Cir. 2010) (“[W]e

do not defer to the agency’s conclusory or unsupported suppositions.” (alteration in original)

(quoting McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir.

2004))).

36

utter failure to comply with notice and comment cannot be considered harmless if there

is any uncertainty at all as to the effect of that failure.” Sprint Corp. v. FCC, 315 F.3d 369,

376 (D.C. Cir. 2003) (quoting Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 96

(D.C. Cir. 2002)). The Federal Circuit has cited that D.C. Circuit line of cases with

approval. See Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1384 n.17 (Fed. Cir.

2017) (citing Sprint Corp., 315 F.3d at 376). In Mid Continent Nail Corp. v. United States, the

Federal Circuit held that an agency’s “failure to comply with the APA was not a mere

technical defect,” reasoning that although “[t]here [wa]s considerable uncertainty as to

the effect of this failure,” the mere fact that it “could well have affected the result” of the

agency’s challenged determination was sufficient to constitute prejudice. Id. at 1384–85

(emphasis added). This Court “cannot brush aside” the Army’s ignoring DFARS 215.306

“and determine that it was harmless error, because there is no way for the court to

determine” that IAP “experienced no harm[.]” Accrediting Council for Indep. Colls. &

Schs. v. DeVos, 303 F. Supp. 3d 77, 107 (D.D.C. 2018) (quoting Level the Playing Field v. Fed.

Election Comm’n, 232 F. Supp. 3d 130, 143 (D.D.C. 2017)) (acknowledging the harmless

error rule contained in 5 U.S.C. § 706 but finding cognizable prejudice where government

agency failed to consider “information that was indisputably relevant”).

The fact that the government already more or less presumes the outcome of the

Court’s equitable relief, see Def. Supp. Br. at 9, does not permit a conclusion of harmless

error now, see Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012) (“[W]e strongly

reject [the agency]’s claim that the challenged errors are harmless simply because of the

pendency of a properly-noticed final rule. Were that true, agencies would have no use

for the APA when promulgating any interim rules. So long as the agency eventually

opened a final rule for comment, every error in every interim rule—no matter how

egregious—could be excused as a harmless error.”); Mazaleski v. Treusdell, 562 F.2d 701,

719 n.41 (D.C. Cir. 1977) (“[A] procedural error is not made harmless simply because the

[plaintiff] appears to have had little chance of success on the merits anyway.” (first citing

Bell v. United States, 366 U.S. 393, 413–14 (1961); and then citing Gratehouse v. United States,

512 F.2d 1104, 1108 & n.3 (Ct. Cl. 1975))).

The government’s reliance on G4S Secure Integration LLC v. United States is

misplaced. In that case, Judge Hertling explained:

In determining whether the plaintiffs have been prejudiced

on the merits, the question is not whether the agency could

possibly reach another result if it were to recompete a

solicitation. The question is whether the plaintiffs “show that

there is a greater-than-insignificant chance” that the agency

37

would reach a different result “had it not committed the

alleged errors.”

G4S, 2022 WL 1053667, at *6 (quoting Am. Relocation Connections, 789 F. App’x at 228).

The undersigned concurs wholeheartedly with that formulation, but the facts of G4S are

not remotely similar to those at issue here. In G4S, Judge Hertling concluded that the

government’s “misapplication of FAR 52.204-7 did not prejudice the plaintiffs” because

neither the plaintiffs nor the awardee were registered in the System for Award

Management (“SAM”) as required by that regulation. Id. at *5. Accordingly, “[t]he SAM-

registration status of neither [the awardee] nor the plaintiffs affected [the State

Department]’s award decision.” Id. Because “neither offeror gained a competitive

advantage in the procurement resulting from the status of its SAM registration[,] . . . there

was therefore no connection between the error the plaintiffs asserted and their failure to

secure the contract.” Id.

Judge Hertling’s formulation of the prejudice standard in G4S reflects that of the

Federal Circuit in Oracle America, Inc. v. United States:

As the Supreme Court, this court, and other circuit courts

have recognized, principles of harmless error apply to judicial

review of agency action generally. A remand is unnecessary

when the error in question “clearly had no bearing on the

procedure used or the substance of decision reached”; if there

is no reason to believe that the decision would have been

different; if it is clear that the agency would have reached the

same result; if the result is “foreordained”; if the court is not

“in substantial doubt whether the administrative agency

would have made the same ultimate finding with the

erroneous finding removed”; or where there is no “significant

chance that but for the error, the agency might have reached

a different result.”

975 F.3d 1279, 1290–91 (Fed. Cir. 2020) (citations omitted), cert. denied, 142 S. Ct. 68 (2021);

see also Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1090–91 (9th Cir. 2011)

(citing cases and holding that courts should find harmless error only where the error

“clearly had no bearing on the procedure used or the substance of decision reached”

(emphasis added) (quoting Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.

1992))).

In this case, IAP demonstrated an error — the Army’s failure to properly consider

DFARS 215.306 — that may have had a bearing on the ultimate award decision. And

here, in contrast to the facts in G4S, there is a “connection between the error” and the

competitive injury to IAP: had the Army correctly considered and applied DFARS

38

215.306, there is a “greater-than-insignificant chance” that IAP would have had the

opportunity to submit a FPR during discussions and be considered for a contract award.

G4S, 2022 WL 1053667, at *5–6. The Court further reiterates that it cannot, following

Regents, consider the government’s post hoc explanations to conclude that a remand will

be futile. 140 S. Ct. at 1908–09; see also Kakar v. U.S. Citizenship & Immigr. Servs., 29 F.4th

129, 133 (2d Cir. 2022) (discussing Regents and holding that “[i]n a lawsuit brought under

the APA, it was not appropriate for the District Court to try to salvage [an agency’s

decision] by supplying an explanation or accepting one that the agency formulated while

litigating this lawsuit”); Mid Continent Nail Corp., 846 F.3d at 1385 n.18 (“[A]gency

attempts to cure procedural defects ex post are not generally accepted as validating prior

missteps.”). To the contrary, to adopt the government’s position would require this Court

to improperly “mak[e] a finding of fact not previously made by the agency.” Oracle Am.,

975 F.3d at 1291–92 (applying clearly erroneous standard of review to trial court’s fact

findings regarding prejudice).

The government further notes, see Def. Supp. Br. at 8, that Judge Hertling in G4S

applied the Federal Circuit’s decision in Bannum, Inc. v. United States, 404 F.3d 1346 (Fed.

Cir. 2004), but as Judge Hertling explained, “[t]he plaintiff in Bannum had advocated for

a different calculation of its score which, even if employed, would not have allowed the

plaintiff to be awarded the contract,” G4S, 2022 WL 1053667, at *6. Again, IAP’s case here

is readily distinguishable. While the plaintiff in Bannum could not have been awarded

the contract even if it were correct about the procurement errors, IAP, by definition,

would be back in the game with a FPR — a possible, if unlikely, outcome of the correct

application of DFARS 215.306. In other words, Judge Hertling is correct that a plaintiff

may not claim prejudice based on the fact that a do-over might permit the plaintiff to

improve its competitive position. Id. Rather, a plaintiff must show that it is entitled to the

remedy sought by showing a connection between the agency’s error and the competitive

injury, such that the relief to address the error and injury may change the outcome of the

procurement. Id. at *5. IAP has met that burden here, as the Court already has found. 55

In sum, the Army’s “assertions here are nothing more than merits arguments

disguised as a discussion of harmless error.” Jicarilla Apache Nation v. U.S. Dep’t of Interior,

55 The Federal Circuit’s decision in Office Design Group v. United States, 951 F.3d 1366 (Fed. Cir.

2020), further supports this Court’s conclusion. There, the Federal Circuit upheld our Court’s

factual finding that the plaintiff “was not prejudiced by [an agency’s] disparate treatment” because

“[e]ven if the [agency had] awarded [plaintiff] the additional 6 points it afforded to the awardee,

[plaintiff’s] technical score would only increase to 18 points, well below the acceptable 40-point

threshold for award.” Id. at 1374 (emphasis added). As this Court demonstrated supra, the

administrative record here does not support the conclusions that: (1) discussions should not have

been conducted; (2) even if discussion were conducted, IAP would not be included in the

competitive range; or (3) IAP would have been unable to cure its deficiencies in a FPR. See IAP

Worldwide Servs., 2022 WL 1021781, at *35–39.

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613 F.3d 1112, 1121 (D.C. Cir. 2010). But, as the Supreme Court has held, “[t]he Army

cannot rely upon something that never happened, upon an administrative determination

that was never made, even if it be assumed that such a determination would have been

permissible under the statute and supported by the facts.” Bell, 366 U.S. at 413. In

contrast, if the Court were to subscribe to the government’s harmless error argument in

this case, “the government would have us virtually repeal [the] requirements” of DFARS

215.306 because the “government could [just] skip those procedures . . . and then be

protected from judicial review” unless a plaintiff could predict the outcome of the

competitive range determination and/or resulting discussions. Sugar Cane Growers, 289

F.3d at 96 (“[A]n utter failure to comply with notice and comment cannot be considered

harmless if there is any uncertainty at all as to the effect of that failure.”). That cannot be

the rule. 56

In this case, IAP has not demonstrated irreparable harm of a sufficient nature to

justify vacating the Army’s contract award, but IAP has demonstrated sufficient

prejudice to support a remand. See PPG Indus., Inc. v. United States, 52 F.3d 363, 365 (D.C.

Cir. 1995) (“Under settled principles of administrative law, when a court reviewing

agency action determines that an agency made an error of law, the court’s inquiry is at

an end: the case must be remanded to the agency for further action consistent with the

corrected legal standards.” (citing Chenery I, 318 U.S. at 94–95)). Moreover, the “public

interest [is] in having governmental agencies abide by the federal laws that govern their

existence and operations.” Texas v. Biden, 10 F.4th 538, 559 (5th Cir. 2021) (alteration in

original) (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)). Additionally,

“[t]here is generally no public interest in the perpetuation of unlawful agency action.” Id.

at 560 (alteration in original) (quoting League of Women Voters of U.S. v. Newby, 838 F.3d 1,

12 (D.C. Cir. 2016)).

IV. An Award of Bid and Proposal Costs Are Not Justified at This Stage

The Court agrees with the government and Vectrus, see Def. Supp. Br. at 9–10; Intv.

Supp. Br. at 10, that bid and proposal costs should not be awarded unless IAP is able to

demonstrate that its initial proposal was somehow unnecessary or wasted, see, e.g., A

Squared Joint Venture, 149 Fed. Cl. at 232 (“To recover bid preparation and proposal costs,

a protestor must demonstrate that the agency’s prejudicial error ‘caused the protester to

incur unnecessarily bid preparation and proposal costs.’ . . . If these costs were ‘not

rendered a needless expense by defendant’s erroneous conduct, but rather were lost due

to’ some other reason, the bid preparation and proposal costs are not recoverable.”

(quoting Reema Consulting Servs., Inc. v. United States, 107 Fed. Cl. 519, 532 (2012)));

56See Eidelson, supra note 13, at 1771–72 (“[T]o the extent that the prejudice question does depend

on an assessment of what the agency would in fact do, Regents teaches that neither the agency’s

representations, nor the fact that its chosen course would be legally permissible, suffices to

resolve that question.”).

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AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 380 (“Bid and proposal preparation costs are

a form of reliance damages which are properly awarded when costs have been wasted.”),

opinion clarified, 87 Fed. Cl. 654 (2009); IAP Worldwide Servs., Inc. v. United States, 141 Fed.

Cl. 788, 809 (2019) (“[B]id and proposal costs . . . are not unnecessarily incurred when a

contractor ‘retains the opportunity to compete for the [contract].’” (quoting Square One

Armoring Serv., Inc. v. United States, 123 Fed. Cl. 309, 330 (2015))).

Particularly given that IAP’s initial proposal was rated as “Unacceptable,” IAP

Worldwide Servs., 2022 WL 1021781, at *7–8, *10, the Court will not award IAP its bid and

proposal costs, at least not at this stage of the case. See Intv. Supp. Br. at 10 (depending

on the remand outcome, “award of [bid and proposal] costs to IAP may be appropriate

here”). On the other hand, if the Army, on remand, decides to issue a new source

selection decision, that may be grounds to award IAP its bid and proposal costs. See id.;

see also CNA Corp. v. United States, 83 Fed. Cl. 1, 9 (2008) (“[W]hen performance has begun

or reevaluation is not feasible, bid preparation costs are appropriate for award.” (citing

Beta Analytics Int’l, Inc. v. United States, 75 Fed. Cl. 155, 159 (2007))), aff’d sub nom. The CNA

Corp. v. United States, 332 F. App’x 638 (Fed. Cir. 2009).

V. CONCLUSION

For the above reasons, pursuant to 28 U.S.C. § 1491(a)(2), (b)(2), and RCFC 52.2,

the Court hereby STAYS and REMANDS this case to the Army to decide in the first

instance how to apply DFARS 215.306 given this Court’s interpretation of that provision

and the facts and circumstances of the procurement at issue, consistent with the Court’s

prior decision in this case. The Army, during the remand period, retains discretion to

decide whether:

1. The Army stands behind its October 23, 2020 source selection decision,

awarding the contract to Vectrus without discussions, and thus will issue a

supplemental decision elaborating on or amplifying the Army’s prior decision

not to engage in discussions; or

2. The Army will issue a new decision, either

a. establishing a competitive range in order to conduct discussions, ultimately

resulting in a new contract award decision; or

b. replacing its previous contract award decision with a new contract award

decision that declines to engage in discussions but is supported by a new

explanation and further development of the administrative record.

On or before Friday, June 24, 2022, the government shall file a status report indicating

which option above it will select.

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If the government selects the first option, then the government shall file with the

Court, on or before Monday, August 8, 2022, an additional explanation, elaborating on

or amplifying information contained in the contemporaneous administrative record

already on file with the Court. Alternatively, if the government selects the second option,

then the government shall file, on or before August 8, 2022, either the new competitive

range determination or the new contract award decision, along with any supporting

documentation. During this remand period, neither the government nor Vectrus are

enjoined from proceeding with the contract at issue.

On or before Monday, August 15, 2022, the parties shall file a joint status report,

indicating whether there is a need for further proceedings in this case, and, if so,

proposing a schedule for such proceedings.

Notwithstanding RCFC 52.2(b)(2), the Clerk of the Court need not serve this

opinion and order; rather, counsel for the United States is directed to provide a copy of

this opinion and order to the cognizant contracting officer, which shall constitute service

pursuant to that Rule.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

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