Dell Federal Systems, L.P. v. United States ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
DELL FEDERAL SYSTEMS, L.P., BLUE TECH INC.,
RED RIVER COMPUTER COMPANY, INC.,
Plaintiffs-Appellees
IRON BOW TECHNOLOGIES, LLC, GOVSMART,
INC., IDEAL SYSTEM SOLUTIONS, INC., NCS
TECHNOLOGIES, INC.,
Plaintiffs
v.
UNITED STATES, HPI FEDERAL, LLC, CDW
GOVERNMENT LLC,
Defendants-Appellants
ALPHASIX CORPORATION, INSIGHT PUBLIC
SECTOR, INC., INTEGRATION TECHNOLGY
GROUPS, INC., STERLING COMPUTERS
CORPORATION,
Defendants
______________________
2017-2516, 2017-2535, 2017-2554
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:17-cv-00465-TCW, 1:17-cv-00473-TCW,
Judge Thomas C. Wheeler.
______________________
SEALED OPINION ISSUED: September 24, 2018
PUBLIC OPINION ISSUED: October 5, 2018*
* This opinion was originally filed under seal and has
been unsealed in full.
2 DELL FED. SYS., L.P. v. UNITED STATES
______________________
CATHERINE EMILY STETSON, Hogan Lovells US LLP,
Washington, DC, argued for all plaintiffs-appellees.
Plaintiff-appellee Dell Federal Systems, L.P. also repre-
sented by MICHAEL F. MASON, THOMAS PETTIT, CHRISTINE
ALICE REYNOLDS.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellant United States.
Also represented by MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR., CHAD A. READLER; ELINOR KIM,
Contract and Fiscal Law Division, United States Army
Legal Services Agency, Fort Belvoir, VA.
JONATHAN MICHAEL BAKER, Crowell & Moring, LLP,
Washington, DC, argued for defendant-appellant HPI
Federal, LLC. Also represented by DANIEL RUBEN
FORMAN, ELIZABETH ANN BUEHLER, ROBERT JOSEPH
SNECKENBERG.
MICHAEL J. ANSTETT, Fried, Frank, Harris, Shriver &
Jacobson LLP, Washington, DC, for plaintiff-appellee
Blue Tech Inc. Also represented by JAMES J.
MCCULLOUGH, BRENDAN CONNOLLY MCNAMARA, NEAHA P.
RAOL.
GREGORY R. HALLMARK, Holland & Knight, LLP,
McLean, VA, for plaintiff-appellee Red River Computer
Company, Inc. Also represented by ELIZABETH JOCHUM,
Tysons, VA; RODNEY MITCHELL PERRY, Washington, DC.
DAVID MICHAEL NADLER, Blank Rome LLP, Washing-
ton, DC, for defendant-appellant CDW Government LLC.
______________________
Before MOORE, SCHALL, and WALLACH, Circuit Judges.
DELL FED. SYS., L.P. v. UNITED STATES 3
WALLACH, Circuit Judge.
After initially awarding a contract for computer
hardware to original awardees including Dell Federal
Systems, L.P. (“Dell”), Blue Tech, Inc. (“Blue Tech”), and
Red River Computer Company (“Red River”) (collectively,
“Appellees”), the U.S. Department of the Army (“the
Army”) instituted a corrective action1 to reopen procure-
ment and conduct additional discussions with offerors.
J.A. 7009 (Corrective Action). Appellees challenged the
decision to institute corrective action before the U.S.
Court of Federal Claims, which granted Appellees’ cross-
motions for judgment on the administrative record and
permanently enjoined the Army from proceeding with its
corrective action. See Dell Fed. Sys., L.P. v. United States,
133 Fed. Cl. 92, 107 (2017); see also J.A. 1 (Judgment).
Appellants HPI Federal, LLC (“HPI”), CDW Govern-
ment, LLC (“CDW”), and the United States (“the Gov-
ernment”) (collectively, “Appellants”) appeal the opinion
and order of the Court of Federal Claims. We possess
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012).
Because the Court of Federal Claims did not apply the
proper legal standard and we determine the Army’s
corrective action was reasonable under that standard, we
reverse.
1 A “corrective action in the bid protest context” is
an “agency action, usually taken after a protest has been
initiated, to correct a perceived prior error in the pro-
curement process, or, in the absence of error, to act to
improve the competitive process.” Dellew Corp. v. United
States, 855 F.3d 1375, 1378 n.2 (Fed. Cir. 2017) (internal
quotation marks and citation omitted).
4 DELL FED. SYS., L.P. v. UNITED STATES
BACKGROUND
I. The Solicitation
In May 2016, the Army solicited proposals for indefi-
nite-delivery, indefinite-quantity contracts for “commer-
cial-off-the-shelf” computer hardware such as desktop
computers, tablet computers, and printers under Solicita-
tion No. W52P1J-15-R-0122 (“the Solicitation”).
J.A. 1341; see J.A. 1339–87. The total estimated contract
value was $5 billion over a ten-year period. J.A. 1341.
While the Army anticipated “mak[ing] at least eight
[contract] awards, with up to five reserved for small
business[es],” J.A. 1341, the Solicitation left open the
possibility that “the [Army] . . . may make as many, or as
few, awards as deemed appropriate,” J.A. 1384.
The Solicitation stated that the competition would be
conducted in accordance with the procedures outlined in
Federal Acquisition Regulations (“FAR”) Part 15, “Con-
tracting by Negotiation,” and the Army would therefore
award contracts to the lowest priced, technically accepta-
ble offerors. J.A. 1384; see FAR 15.101-2(a) (2015) (ex-
plaining that the “lowest price technically acceptable
source selection process is appropriate when best value is
expected to result from selection of the technically ac-
ceptable proposal with the lowest evaluated price”). The
Solicitation further stated offerors would be evaluated
based on “an integrated assessment of three evaluation
factors” of “Technical Approach, Past Performance, and
Price,” and any relevant attendant sub-factors. J.A. 1385.
To be considered for an award, the Solicitation required
offerors to achieve an “‘Acceptable’ [rating] . . . for the
Technical Approach and its two sub-factors and the Past
Performance [f]actor.” J.A. 1385. For the two Technical
Approach sub-factors, offerors were required to complete
an attached “Equipment Submission Form” and “Business
Process Form” in Microsoft Excel. J.A. 1381–82; see, e.g.,
J.A. 1388–421 (Equipment Submission Form spreadsheet
DELL FED. SYS., L.P. v. UNITED STATES 5
template), 1422–25 (Business Process Form spreadsheet
template). For the Equipment Submission Form, offerors
were instructed to “complete all cell entries” and “identify
the Original Equipment Manufacturer (OEM)[] model and
salient characteristics of each proposed item,” and were
advised that “[a]n incomplete or blank entry will indicate
that the proposed item does NOT meet minimum re-
quirements.” J.A. 1382.
To evaluate the offerors’ bids, the Army’s evaluation
team consisted of a Source Selection Authority (“SSA”), a
Source Selection Evaluation Board (“SSEB”), and a Pro-
curing Contracting Officer (“CO”). J.A. 1303. The SSEB
would “review and evaluat[e] . . . proposals against the
[S]olicitation requirements and the approved evaluation
criteria,” J.A. 1307, and document their evaluation results
in a Source Section Decision Document report, J.A. 5573.
Based upon that report, the SSA would either “[m]ake a
determination to award without discussions or enter into
discussions” and make “the final source selection deci-
sion . . . before contracts [were] awarded or announced.”
J.A. 1304.
The Army reserved the right “to conduct discussions
and to permit [o]fferors to revise proposals if determined
necessary by the [CO].” J.A. 1379; see J.A. 1468 (stating,
in an amendment to the Solicitation, “the [Army] intends
to award without conducting discussions”); see also
FAR 15.306(d) (defining discussions as exchanges “under-
taken with the intent of allowing the offeror to revise its
proposal”). The Solicitation further explained that “[i]f
discussions are opened, all proposals, to include small
business proposals previously removed for unacceptabil-
ity[,] . . . will be included. After discussions are closed and
final proposal revision[s] are received, the [Army] will
separate proposals, re-list[,] and evaluate” in accordance
with the procedures for the competition categories, i.e.,
full and open competition category, and reserved small
business category. J.A. 1384.
6 DELL FED. SYS., L.P. v. UNITED STATES
II. Source Selection and Award
The Army received fifty-eight proposals, with fifty-two
from small businesses. J.A. 5574. Three proposals were
rejected as non-responsive, and of the fifty-five proposals
that were evaluated, nine were deemed acceptable for the
Technical Approach and Past Performance evaluation
factors, see J.A. 5574; see also J.A. 5575–77 (detailing
each party’s rating for each evaluation factor), with all
nine final prices found to be fair and reasonable, see J.A.
5579–80. The SSEB said it did “not have a meaningful
reason to open discussions” with offerors because doing so
“would significantly delay award.” J.A. 5534. In Febru-
ary 2017, the Army awarded nine contracts: five con-
tracts under the small business category, including to
Blue Tech and Red River, and four under the full and
open competition category, including to Dell. J.A. 5573,
5580; see J.A. 5579 (identifying which awardees relate to
each category).
III. Post-Award Protests and the Army’s Corrective Action
Following the award decision, HPI, CDW, and nine-
teen other unsuccessful offerors filed protests at the U.S.
Government Accountability Office (“GAO”). See, e.g., J.A.
6296–305 (CDW’s GAO protest), 6346–427 (HPI’s GAO
protest). An Army memorandum for record (“MFR”), inter
alia, summarizes how the “primary protest allegations”
protested the Army’s evaluations as unreasonable because
the proposal deficiencies the Army considered disqualify-
ing were minor or “clerical errors and misunderstandings”
resulting from Solicitation ambiguities that could have
been resolved through clarifications as defined in FAR
15.306(a)(2). 2 J.A. 7019; see, e.g., J.A. 6033, 6297. Sever-
2 Clarifications “are limited exchanges, between the
Government and offerors, that may occur when award
DELL FED. SYS., L.P. v. UNITED STATES 7
al protests also argued that the Army should have en-
gaged in discussions with offerors to resolve these spread-
sheet-related misunderstandings, as required by Defense
Federal Acquisition Regulations Supplement
(“DFARS”) 215.306(c), and to resolve claimed misunder-
3
standings relating to the completion of the Excel spread-
sheets. See, e.g., J.A. 6367–69; see also
DFARS 215.306(c)(1) (“For acquisitions with an estimated
value of $100 million or more, contracting officers should
conduct discussions.” (emphasis added)).
In response to the GAO protest, the Army conducted
an internal review, see J.A. 7018, and issued its Notice of
Corrective Action, informing GAO that it had decided
“that it would be in the Army’s best interest to take
corrective action to resolve all the protests,” J.A. 7009
(emphasis added). The Army stated that such corrective
action would “consist of the following: (1) opening discus-
sions with all of the remaining offerors, including those
who filed protests, (2) requesting final revised proposals,
and (3) issuing a new award decision.” J.A. 7009.
The Army also released its MFR documenting its ra-
tionale for proposing corrective action in light of the GAO
protests. See J.A. 7018–21 (MFR). First, the CO ex-
without discussions is contemplated.” FAR 15.306(a)(1).
“If award will be made without conducting discussions,
offerors may be given the opportunity to . . . resolve minor
or clerical errors.” FAR 15.306(a)(2).
3 While the FAR System establishes “uniform poli-
cies and procedures for acquisition by all executive agen-
cies,” FAR 1.101, the DFARS is the Department of
Defense’s “implementation and supplementation of the
FAR,” DFARS 201.301(a)(1), and “is codified under chap-
ter 2 in title 48, Code of Federal Regulations,”
DFARS 201.303(a)(i).
8 DELL FED. SYS., L.P. v. UNITED STATES
plained how the Army’s counsel found that because the
procurement was valued in excess of $100 million, the
Army was likely required to conduct discussions with
offerors pursuant to DFARS 215.306(c)(1). See
J.A. 7018−19 (explaining that the SSEB’s reasoning of
award delay did not constitute a reasonable basis for
forgoing discussions); see also J.A. 5534 (providing the
SSEB’s reasoning). Second, counsel found that there was
“ambiguity in the requirements or the [Army’s] instruc-
tions [on] how to fill out the [Equipment Submission Form
and Business Process Form Microsoft Excel] spread-
sheet[s],” which “could have easily and quickly been
resolved” before award and could have been addressed in
discussions. J.A. 7020; see J.A. 7020 (stating many of the
“Unacceptable” ratings were “merely compliance issues
with filling out the form rather than a deficiency in the
item proposed”). The Army summarized two representa-
tive examples of the ambiguities: (1) the presence of a
thick, black line “hard-line” in the Equipment Submission
Form spreadsheet between the hard-drive and solid-state
drive requirements; and (2) the conflicting instructions
that “an upgrade [to a base model] must be an increase in
capability” and “that selection of an item in a drop-down
[menu] is acceptable when there are items in the drop-
down that are not upgrades to a base model.” J.A. 7020;
see, e.g., J.A. 386 (depicting the hardline). Ultimately,
Army’s counsel recommended that “[d]ue to the signifi-
cant litigation risk, the ambiguities in the spread-
sheet . . . , and a matter of policy to do what is
right, . . . [the Army] take limited corrective action to
resolve the issues with Offerors’ Technical Proposals.”
J.A. 7021.
As a result of the Army’s proposed corrective action,
the GAO dismissed the unsuccessful offerors’ protests as
moot. See J.A. 7022–23. The Army subsequently notified
offerors that “[d]iscussions with all offerors in the compet-
itive range are now open” and invited offerors to present
DELL FED. SYS., L.P. v. UNITED STATES 9
their “best and final proposal,” J.A. 7047 (letter to origi-
nally successful offeror), and the Army advised originally
unsuccessful offerors to “address the deficiencies in [their]
proposal[s],” J.A. 7076, and to revise their final prices “to
their best and final prices,” J.A. 7077. In addition, “to
remedy [any] potential competitive [dis]advantage” to
offerors whose prices were disclosed by the original award
notice, the Army sent all offerors a Microsoft Excel
spreadsheet of the final proposed prices, with offerors not
identified. J.A. 7378; see J.A. 7379–80 (listing prices).
IV. The Relevant Proceedings
Two of the nine initial awardees, specifically Dell and
Blue Tech, sued the Government in the Court of Federal
Claims, seeking to enjoin the Army’s corrective action, see
J.A. 290, and five other initial awardees, including Red
River, joined as intervenors, Dell, 133 Fed. Cl. at 100. 4
The cases were consolidated. Id. The Appellees then
sought a permanent injunction, arguing that the correc-
tive action was unlawful, and the proposed corrective
action to reopen the competition was not reasonable
under the circumstances. See id. 5
In its Opinion and Order, the Court of Federal Claims
granted the Appellees’ request for declaratory relief and a
permanent injunction of the Army’s corrective action. Id.
at 107; see id. at 104–07 (analyzing the four-pronged test
4 Because the parties do not dispute the relevant
procedural history, see generally Gov’t’s Br.; HPI’s Br.;
CDW’s Br.; Blue Tech’s Br.; Dell’s Br.; Red River’s Br., we
cite to the Court of Federal Claims’ recitation for conven-
ience.
5 The Army voluntarily stayed the corrective action
pending resolution of the litigation. J.A. 281.
10 DELL FED. SYS., L.P. v. UNITED STATES
for injunctive relief in favor of Appellees); see Centech
Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009) (outlining the four-pronged permanent injunction
test as (1) success on the merits, (2) irreparable harm,
(3) the balance of hardships, and (4) the public interest).
As to success on the merits, the Court of Federal Claims
determined that, while it agreed that the Army had
rationally identified procurement defects, the “Army’s
contemplated corrective action [wa]s overbroad.” Dell,
133 Fed. Cl. at 104 (capitalization modified); see id. (not-
ing that “the Army rationally identified two procurement
defects”: (1) “ambiguities in the Equipment Submission
Form” and (2) “the Army’s failure to hold discussions”); id.
at 104 (stating that “[e]ven where an agency has rational-
ly identified defects in its procurement, its corrective
action must narrowly target the defects it is intended to
remedy” (internal quotation marks and citation omitted)),
106 (holding that the Army’s corrective action “is not
rationally related to any procurement defects”). The
Court of Federal Claims also found all three other prongs
of the permanent injunction test weighed in favor of
Appellees, id. at 107, and therefore entered a permanent
injunction, J.A. 1. 6
6 As to irreparable harm, the Court of Federal
Claims found this factor weighed in favor of the Appellees
because “[Appellees] would be forced to re[-]compete
wholesale for contracts they have already won” and
“discussions would also force the [Appellees] to bid
against their own prices.” Dell, 133 Fed. Cl. at 107. As to
the balance of hardships, it found that this factor weighed
in favor of Appellees because while “[t]he Government
would suffer some hardship if it decided to engage in more
limited clarification exchanges,” “the [Appellees] would
face an elevated risk of losing their awards if the Army
DELL FED. SYS., L.P. v. UNITED STATES 11
DISCUSSION
On appeal, Appellants contend that we should reverse
the Court of Federal Claims’ grant of a permanent injunc-
tion because (1) the Court of Federal Claims applied the
wrong standard in considering success on the merits
because it assessed whether the Army’s proposed correc-
tive action was “narrowly targeted” to remedy a procure-
ment defect, Gov’t’s Br. 21, 7 and (2) under the proper legal
framework, “the Army’s corrective action is rationally
related to the procurement defect,” id. at 26 (capitaliza-
tion modified). We begin with the governing standards
and then address Appellants’ arguments in turn.
I. Standard of Review and Legal Standard
We review “the [Court of Federal Claims’] determina-
tion on the legal issue of the government’s conduct, in a
grant of judgment upon the administrative record, with-
out deference.” Per Aarsleff A/S v. United States, 829
F.3d 1303, 1309 (Fed. Cir. 2016) (citation omitted). We
review “[p]rotests of agency procurement deci-
sions . . . under the standards set forth in the Administra-
tive Procedure Act (‘APA’).” Id. (citing 28 U.S.C.
§ 1491(b)(4)); see APA, 5 U.S.C. §§ 551–559, 701–706,
were to conduct discussions.” Id. As to the public inter-
est, the Court of Federal Claims determined that the
“public interest favors granting injunctive relief here”
because “allowing an agency to respond disproportionate-
ly to minor procurement errors harms the integrity of the
procurement system” and “introduces an unfair and
unanticipated additional layer of competition.” Id.
7 Appellants make substantially similar arguments
on appeal. See Gov’t’s Br. 22; HPI’s Br. 15; CDW’s Br. 15.
For ease of reference, we cite only to the Government’s
arguments unless otherwise noted.
12 DELL FED. SYS., L.P. v. UNITED STATES
1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012). The
APA provides that “a reviewing court shall set aside the
agency action if it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed.
Cir. 2013) (internal quotation marks and citation omit-
ted); see 5 U.S.C. § 706(2)(A). We have held that “[u]nder
[the APA] standards, a reviewing court may set aside a
procurement action,” such as a corrective action, “if (1) the
procurement official’s decision lacked a rational basis; or
(2) the procurement procedure involved a violation of
regulation or procedure.” Centech Grp., 554 F.3d at 1037
(internal quotation marks and citation omitted); see id. at
1036–37 (treating a corrective action as a type of pro-
curement action).
In evaluating a bid protest case, the Court of Federal
Claims “may award any relief that the court considers
proper, including declaratory and injunctive relief.” 28
U.S.C. § 1491(b)(2) (emphasis added). To grant injunctive
relief, the Court of Federal Claims “must consider wheth-
er (1) the plaintiff has succeeded on the merits, (2) the
plaintiff will suffer irreparable harm if the court with-
holds injunctive relief, (3) the balance of hardships to the
respective parties favors the grant of injunctive relief, and
(4) the public interest is served by a grant of injunctive
relief.” Centech Grp., 554 F.3d at 1037 (citation omitted).
“We give deference to the Court of Federal Claims’ deci-
sion to grant or deny injunctive relief, only disturbing the
court’s decision if it abused its discretion.” PGBA, LLC v.
United States, 389 F.3d 1219, 1223 (Fed. Cir. 2004) (cita-
tion omitted). An abuse of discretion exists where the
Court of Federal Claims “made a clear error of judgment
in weighing the relevant factors or exercised its discretion
DELL FED. SYS., L.P. v. UNITED STATES 13
based on an error of law or clearly erroneous fact finding.”
Id. (internal quotation marks and citation omitted). 8
II. Injunctive Relief
A. The Court of Federal Claims Abused Its Discretion in
Granting a Permanent Injunction Because It Improperly
Assessed the Success on the Merits Prong
The Court of Federal Claims summarized the ques-
tion before it as “whether holding post-award discussions
is a rational remedy for failing to hold pre-award discus-
8 Before discussing the merits of the appeal, we
first address the threshold issue of jurisdiction. See
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986) (recognizing that we have an independent “obliga-
tion to satisfy [ourselves] not only of [our] own jurisdic-
tion, but also that of the lower courts”). Pursuant to the
Tucker Act, the Court of Federal Claims has bid protest
jurisdiction to adjudicate an action by an “interested
party objecting to a solicitation by a Federal agency for
bids or proposals for a proposed contract or to a proposed
award or the award of a contract or any alleged violation
of statute or regulation in connection with a procurement
or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The
Court of Federal Claims had jurisdiction because the
Appellees are interested parties that have bid on the
Solicitation and have alleged violations of the FAR and
DFARS. See id.; see also Sys. Application & Techs., Inc. v.
United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012) (“This
court has made clear that bid protest jurisdiction arises
when an agency decides to take corrective action even
when such action is not fully implemented.”). We, in turn,
have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1295(a)(3) (2012).
14 DELL FED. SYS., L.P. v. UNITED STATES
sions.” Dell, 133 Fed. Cl. at 105. It held that “the Army’s
corrective action is not rationally related to any procure-
ment defects.” Id. at 106. However, in so holding, the
Court of Federal Claims applied a heightened standard,
requiring that a reasonable “corrective action must nar-
rowly target the defects it is intended to remedy.” Id. at
104 (internal quotation marks and citation omitted). The
Court of Federal Claims thus enjoined the corrective
action because it felt there was “a more narrowly targeted
post-award solution that the Army entirely failed to
consider: clarifications and reevaluation.” Id. at 105.
Appellants argue that the Court of Federal Claims erred
in determining that Appellees had demonstrated success
on the merits by employing an incorrect standard. See
Gov’t’s Br. 21–22; see also Dell, 133 Fed. Cl. at 107.
Specifically, Appellants argue that the Court of Federal
Claims applied a “more exacting [standard] than the
APA’s ‘rational basis’ review threshold for procurement
protests, and impermissibly restrict[ed] the great defer-
ence the Tucker Act requires courts to afford agency
procurement officials” by its use of a “narrowly targeted”
standard. Gov’t’s Br. 22. We agree with Appellants.
The Court of Federal Claims based its decision on an
error of law because corrective action only requires a
rational basis for its implementation. Although the Court
of Federal Claims has previously and occasionally em-
ployed a “narrow targeting” test to evaluate the appropri-
ateness of a corrective action, see, e.g., Amazon Web
Servs., Inc. v. United States, 113 Fed. Cl. 102, 115 (2013)
(employing, by the same Court of Federal Claims judge,
“narrowly target” language when reviewing a corrective
action), “the Court of Federal Claims must follow relevant
decisions of the Supreme Court and the Federal Circuit,
not the other way around,” Dellew, 855 F.3d at 1382
(footnote omitted). We have never adopted this height-
ened “narrowly targeted” standard, as both parties con-
cede. See Oral Arg. at 1:26–46, 21:06–19,
DELL FED. SYS., L.P. v. UNITED STATES 15
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
17-2516.mp3.
Instead, we have consistently reviewed agencies’ cor-
rective actions under the APA’s “highly deferential”
“rational basis” standard. Croman, 724 F.3d at 1363
(internal quotation marks and citation omitted); see id. at
1367 (affirming the Court of Federal Claims’ grant of
summary judgment in favor of the Government where the
agency’s corrective action “decisions were rationally based
and not contrary to law”); see, e.g., Raytheon Co. v. United
States, 809 F.3d 590, 595 (Fed. Cir. 2015) (explaining
that, “for us to uphold the [agency’s] decision to reopen
the bidding process, it is sufficient . . . that the grounds
relied on by the [agency] . . . rationally justified the reo-
pening under governing law” (emphasis added)); Chap-
man Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934,
938 (Fed. Cir. 2007) (affirming Court of Federal Claims’
inquiry, which considered the “reasonableness of the
Government’s . . . proposed corrective action”). 9 The
rational basis test asks “whether the contracting agency
provided a coherent and reasonable explanation of its
9 Even the Appellees do not dispute that we ulti-
mately determine whether an agency’s corrective action
lacked a “rational basis” by assessing the reasonableness
of the corrective action. See, e.g., Dell’s Br. 14 (“To be
found reasonable, an agency’s corrective action must be
rationally related to the defect to be corrected . . . .”); Blue
Tech’s Br. 21 (similar); Red River’s Br. 5 (similar). How-
ever, as addressed herein, Appellees dispute the latitude
afforded the lower court to apply and narrow the reasona-
bleness analysis. See, e.g., Dell’s Br. 18 (disagreeing with
the Government’s “conten[tion] that [use of] th[e] ‘more
narrowly targeted’ test unduly constrains the Army’s
discretion” under a court’s reasonableness review).
16 DELL FED. SYS., L.P. v. UNITED STATES
exercise of discretion.” Banknote Corp. of Am., Inc. v.
United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (in-
ternal quotation marks and citation omitted); see id. at
1355–56 (upholding a “best value” award decision and
finding a procurement official acted “within the scope of
[his] discretion” in making “a reasonable judgment” to
weigh equally a solicitation’s “price and technical factors”
despite “the solicitation’s silence regarding the relation-
ship between the [two]” because “the additional cost of [an
unsuccessful bidder’s] proposal would not offset its strong
technical evaluation”).
When determining whether a court committed legal
error in selecting the appropriate legal standard, we
determine which legal standard the tribunal applied, not
which standard it recited. See Int’l Custom Prods., Inc. v.
United States, 843 F.3d 1355, 1359 (Fed. Cir. 2016) (stat-
ing that “a single reference to an incorrect legal standard
does not undermine a final decision, only its application
does” and holding that, despite referencing an incorrect
legal standard, the court under review did not err because
it “repeatedly applied the correct . . . standard”). Here,
although the Court of Federal Claims framed its standard
of review and conclusions in terms of rationality and
reasonableness, see Dell, 133 Fed. Cl. at 101, 105, 106, it
actually applied a heightened “narrowly targeted” stand-
ard, see id. at 105–06 (performing a fact-intensive analy-
sis under a heightened “narrowly targeted” review of the
Army’s corrective action, and finding “there is a more
narrowly targeted post-award solution that the Army
entirely failed to consider[,] clarifications and reevalua-
tion” “of proposals as a more natural expedient for the
minor clerical errors it had identified”). Asking whether a
selected remedy is as narrowly targeted as possible to an
identified error in the bidding process requires more than
a finding of rationality or reasonableness; therefore, the
Court of Federal Claims improperly applied an overly
stringent test for corrective action. Cf. Ala. Aircraft
DELL FED. SYS., L.P. v. UNITED STATES 17
Indus., Inc.-Birmingham v. United States, 586 F.3d 1372,
1376 (Fed. Cir. 2009) (reversing the Court of Federal
Claims, where an agency made “a determination well
within [its] discretion,” but the Court of Federal Claims
“attempt[ed] to rewrite the [request for proposals] . . . in
the manner the court preferred,” such that it “went be-
yond the scope of the court’s [APA] review[] and amounted
to an impermissible substitution of the court’s judgment
for the agency’s with regard to how the contract work
should be designed”).
This error is due in part to the Court of Federal
Claims’ improper reliance on its decision in Amazon Web.
See Dell, 133 Fed. Cl. at 104. In Amazon Web, the Court
of Federal Claims held that a corrective action was over-
broad, explaining that “even where a protest is justified,
any corrective action must narrowly target the defects it
is intended to remedy.” 113 Fed. Cl. at 115 (citation
omitted). The Court of Federal Claims’ reliance on Ama-
zon Web is incorrect for two reasons. First, as we outlined
above, the Court of Federal Claims gave greater weight to
the defective legal standard as recited in Amazon Web
than our holdings in Chapman, Croman, Raytheon, and
Banknote. Federal Circuit precedent is “binding on this
court as it is binding on the Court of Federal Claims.”
Crowley v. United States, 398 F.3d 1329, 1335 (Fed. Cir.
2005). Second, binding precedent aside, Amazon Web, in
any event, is factually distinguishable. The defects in
Amazon Web were associated with only the agency’s
evaluation process, see 113 Fed. Cl. at 109, 116, and not
with the agency’s original solicitation and proposals, as is
the case here. Moreover, in Amazon Web, the Court of
Federal Claims found no rational basis based upon the
agency’s lack of “a narrowly tailored” corrective action
that sought to amend the Solicitation despite no alleged
defects with the solicitation or proposals. See id. at 116.
Here, we have both alleged and undisputed procurement
defects, and unlike Amazon Web, the Army has not pro-
18 DELL FED. SYS., L.P. v. UNITED STATES
posed changing its original requirements when reevaluat-
ing the offerors’ proposals. For these reasons, the Court
of Federal Claims improperly relied upon Amazon Web to
find that the corrective action was not “narrowly targeted”
and therefore overbroad and not reasonable.
We disagree with the Appellees’ main counterargu-
ment that we should view the “narrowly targeted” re-
quirement not as a heightened standard but rather as an
application of the rational basis standard. See Blue
Tech’s Br. 24–25; Dell’s Br. 16–19. Specifically, Appellees
argue that corrective action cases are too “fact specific” for
only one agreed-upon application of the legal standard,
and they advocate a “reasonable under the circumstances”
analysis. Blue Tech’s Br. 24 (quoting WHR Grp., Inc. v.
United States, 115 Fed. Cl. 386, 397 (2014)); see id.
(“[G]iven the substantial differences . . . from procurement
to procurement, ‘there can be no universal test as to what
constitutes appropriate corrective action.’”); Dell’s Br. 19–
23 (similar); Red River’s Br. 4 (referring to the tests as
“two sides of the same coin”). Not only is WHR Group a
decision of the Court of Federal Claims that is not binding
on us, Dellew, 855 F.3d at 1382, but WHR Group does not
support a “narrowly targeted” standard. Instead, WHR
Group only references in passing various types of evidence
used to prove whether the contracting agency had a
rational basis for taking a corrective action, such as “a
defect in a solicitation,” a “legislative reduction of a pro-
gram,” or “legitimate budgetary needs.” 115 Fed. Cl. at
397. Adopting the “narrowly targeted” standard would
undermine our deferential APA review, which statutorily
mandates that we determine “whether the contracting
agency provided a coherent and reasonable explanation of
its exercise of discretion.” Banknote, 365 F.3d at 1351
(internal quotation marks and citation omitted). Because
the heightened “narrowly targeted” standard finds no
support in the statute or our precedent, we hold that the
DELL FED. SYS., L.P. v. UNITED STATES 19
Court of Federal Claims erred in applying an incorrect
legal standard to review the Army’s corrective action.
B. The Army’s Corrective Action Had a Rational Basis
The Court of Federal Claims concluded, inter alia,
that despite it being “reasonable” for the Army to “consid-
er[] its failure to conduct discussions to be a procurement
defect,” the only time to have those discussions was pre-
award, and therefore reopening procurement post-award
was overbroad and improper. 10 Dell, 133 Fed. Cl. at 103;
see id. at 106 (stating that “it was [not ]rational for the
Army to fail to consider [more narrowly tailored] clarifica-
tions and reevaluation of proposals as a more natural
expedient for the minor clerical errors it had identified”),
id. (“The Army instead opened wide-reaching discussions
with all remaining offerors and allowed all offerors to
submit modified proposals with new prices, despite hav-
10 The parties do not dispute the Court of Federal
Claims’ finding that procurement defects existed, namely
the separate, identified defects of spreadsheet ambiguities
and the failure to conduct discussions. Dell, 133 Fed. Cl.
at 103 (“[I]t was rational for the Army to find defects in
the ambiguous spreadsheets . . . [because it] confused
offerors and led many of them to input their line item
responses incorrectly[,] . . . result[ing in] . . . many offe-
rors [being deemed] technically unacceptable.”); id. at 104
(stating “it was rational for the Army to find that it may
have failed the reasonableness test [previously] articulat-
ed [by GAO] when it decided to forgo discussions” in a $5
billion procurement contract in likely violation of DFARS
215.306(c)(1)); see, e.g., Gov’t’s Br. 18 (“The trial court
correctly concluded that the Army reasonably determined
that the solicitation was defective . . . .”); Blue Tech’s Br. 2
(arguing only that the proposed corrective action is not a
“logical correction” to the “defective solicitation”).
20 DELL FED. SYS., L.P. v. UNITED STATES
ing disclosed the [Appellees’] winning prices.”). The
Government argues that we should reverse the Court of
Federal Claims’ permanent injunction because the Army’s
corrective action to reopen procurement was in fact rea-
sonably related to the Solicitation’s procurement defects,
J.A. 7009, both because such a corrective action is directly
and reasonably related to its “likely violat[ion]” of DFARS
215.306(c)(1) by failing to conduct pre-award discussions
for a high-valued solicitation, Gov’t’s Br. 26, and because
“clarifications cannot be used to correct material proposal
mistakes,” id. at 30 (capitalization modified). We agree
with the Government.
Reviewing the corrective action under the proper legal
standard, we hold the Army’s original notice of corrective
action was reasonable, and through our reversal of the
lower court’s injunction, this is the corrective action we
analyze and reinstate. See J.A. 7009 (Notice of Corrective
Action). The Army’s corrective action “consists of the
following: (1) opening discussions with all of the remain-
ing offerors, including those who filed protests, (2) re-
questing final revised proposals, and (3) issuing a new
award decision.” J.A. 7009. The Army’s proposed correc-
tive action to reopen procurement and allow proposals to
be revised is rationally related to the procurement’s
defects, i.e., failure to conduct discussions and spread-
sheet ambiguities. Spreadsheet ambiguities may not
always require reopening the procurement process. See
Info. Tech. & Applications Corp. v. United States, 316
F.3d 1312, 1322 (Fed. Cir. 2003) (explaining, for example,
that “[r]ather than being ‘for the sole purpose of eliminat-
ing minor irregularities, informalities, or apparent cleri-
cal mistakes,’ clarifications now provide offerors ‘the
opportunity to clarify certain aspects of proposals (e.g.,
the relevance of an offeror’s past performance information
and adverse past performance information to which the
offeror has not previously had an opportunity to re-
spond)’”). However for the other expressly stated defect of
DELL FED. SYS., L.P. v. UNITED STATES 21
failure to conduct discussions, the only way to conduct
discussions as contemplated here is to reopen the pro-
curement process to solicit revised proposals. See id. at
1321 (“[D]iscussions involve negotiations[ and] may
include ‘bargaining,’ which ‘includes persuasion, altera-
tion of assumptions and positions, give-and-take, and may
apply to price, schedule, technical requirements . . . , or
other terms of a proposed contract. A[nd] unlike clarifica-
tions, discussions ‘are undertaken with the intent of
allowing the offeror to revise its proposal.’” (citations
omitted)).
Contrary to the Court of Federal Claims’ incorrect
characterization of the identified spreadsheet defects as
“relatively minor,” we find that the identified defects in
the Solicitation that led to “the majority of the offerors”
being disqualified––due to their submission of technically
unacceptable offers––were highly material. Dell, 133 Fed.
Cl. at 104. An offeror’s understanding of what computer
equipment it may or may not propose is certainly material
to this procurement for computer equipment and accesso-
ries. The offeror’s computer equipment models are the
primary technical elements upon which the offerors are
being evaluated, see J.A. 1388–421, and the ambiguity
pertained to filling out the Equipment Submission Form,
which allows the offerors to identify their computer
equipment, see J.A. 386, 7020. Correcting the solicitation
ambiguity to allow the offerors to properly identify their
equipment, therefore, goes well beyond omitted clerical
information. 11
11 Indeed, the Court of Federal Claims acknowl-
edged that, while “many of the losing offerors in this
procurement made minor or clerical errors” allegedly
capable of correction through clarifications, Dell, 133 Fed.
Cl. at 105, there were offerors that made “more wide-
22 DELL FED. SYS., L.P. v. UNITED STATES
Pursuant to the APA, an agency’s actions must be “in
accordance with law.” 5 U.S.C. § 706(2)(A). Moreover, an
agency is bound by the “applicable procurement statutes
and regulations.” Alfa Laval Separation, Inc. v. United
States, 175 F.3d 1365 (Fed. Cir. 1999); see Blue & Gold
Fleet, LP v. United States, 70 Fed. Cl. 487, 512 (2006) (“An
agency has no discretion regarding whether or not to
follow applicable laws and regulations.”), aff’d, 492 F.3d
1308 (Fed. Cir. 2007). Pursuant to DFARS 215.306(c)(1),
“[f]or acquisitions with an estimated value of $100 million
or more, contracting officers should conduct discussions.”
Therefore, discussions normally are to take place in these
types of acquisitions. See SAS Inst., Inc. v. Iancu, 138 S.
Ct. 1348, 1354 (2018) (“The word ‘shall’ generally imposes
a nondiscretionary duty.”); see also Johnson v. McDonald,
762 F.3d 1362, 1365 (Fed. Cir. 2014) (interpreting a
regulation by ascertaining its plain meaning). FAR 2.101
defines “should” to mean “an expected course of action or
policy that is to be followed unless inappropriate for a
particular circumstance,” and the GAO has applied FAR
2.101 to interpret DFARS 215.306(c)(1). See Sci. Applica-
tions Int’l Corp. (SAIC), No. B-413501, 2016 WL 6892429,
at *8 (Comp. Gen. Nov. 9, 2016) (finding, in a case of first
impression by the GAO, that DFARS 215.306(c)(1) is
reasonably read to mean that “discussions are the ex-
pected course of action in [Department of Defense] pro-
curements valued over $100 million” (emphasis added)).
Here, the total procurement is estimated at $5 billion,
J.A. 1341, which clearly exceeds the $100 million thresh-
old of DFARS 215.306(c)(1). While it is true that we
afford great discretion to a reasonable agency decision, see
Turner Constr. Co. v. United States, 645 F.3d 1377, 1381
(Fed. Cir. 2011) (“It is well settled that COs are given
reaching errors” that were not capable of correction via
clarification, id. at 106.
DELL FED. SYS., L.P. v. UNITED STATES 23
broad discretion in their evaluation of bids. When
a[ CO’s] decision is reasonable, neither a court nor the
GAO may substitute its judgment for that of the agency.”
(citations omitted)), as the Court of Federal Claims recog-
nized, “it was rational for the Army” to determine that the
decision “to forgo discussions” with at best “threadbare
and conclusory” reasons likely “failed the reasonableness
test articulated in SAIC,” Dell, 133 Fed. Cl. at 104; see
J.A. 7019–20 (citing J.A. 5534). Had the Army conducted
pre-award discussions, several of the lower-priced offerors
deemed unacceptable––either as a result of ambiguous
Solicitation requirements or otherwise––might have
revised their initial proposals, which then might plausibly
have been found technically acceptable. Opening discus-
sions with all offerors at this stage in the process, as
coherently explained here by the Army, see J.A. 7019–20,
is a reasonable vehicle to allow offerors to propose compli-
ant equipment and modify prices accordingly, see Bank-
note, 365 F.3d at 1351. We determine that the corrective
action of conducting discussions is rationally related to
the undisputed procurement defect of originally failing to
conduct pre-award discussions, as reasonably interpreted
by the agency to be required by the applicable regulations,
in the first instance. See J.A. 7019–20.
The Appellees contend that the Army’s decision to
conduct discussions was an unreasonable corrective
action, “even assuming the [Court of Federal Claims]
applied the ‘wrong standard.’” Blue Tech’s Br. 27 (capital-
ization modified). Specifically, they argue the action was
unreasonable because the defects were identified after the
initial award decisions were made, in effect arguing that
the reasonableness inquiry is different in the pre- and
post-award context. See id. at 27–28 (“[T]he posture of
this procurement is fundamentally different from what it
would have been had the Army engaged in discussions
before announcing nine of the offerors’ proposed prices.”);
Dell’s Br. 30 (“Even accepting that the Army should have
24 DELL FED. SYS., L.P. v. UNITED STATES
held discussions earlier in the process, it does not follow
that the proper remedy for that error is to hold far-
reaching discussions now.”); Red River’s Br. 8 (“While
failure to conduct pre-award discussions could be properly
remedied by conducting discussions before the awards
were announced and the awardees’ prices disclosed, the
same is not true in the post-award environment.”). How-
ever, the Appellees cite no precedent, nor do we find any,
to support the imposition of a pre- and post-award dichot-
omy in our reasonableness analysis for corrective action.
Since opening discussions was a reasonable corrective
action, see supra, pursuant to the express terms of the
Solicitation, “[i]f discussions are opened, all proposals, to
include small business proposals previously removed for
unacceptability . . . will be included,” J.A. 1384. We do
not disrupt on appeal the Army’s adherence to the terms
of the Solicitation in implementing its corrective action to
open discussions. See Croman, 724 F.3d at 1363 (review-
ing the agency’s corrective action pursuant to a “highly
deferential” standard (internal quotation marks and
citation omitted)).
While the Appellees take issue with alleged anti-
competitiveness of the Army’s release of all offerors’
pricing in order to maintain fairness in the corrective
action rebidding, see Blue Tech’s Br. 28; Dell’s Br. 31–32;
Red River’s Br. 5, this does not alter our analysis. Here,
the relevant timeline of events lends itself to a unique
procedural posture. After the Army notified all offerors of
the award, it sent debriefing letters in February 2017 to
the unsuccessful offerors “in accordance with FAR
15.506.” J.A. 5949; see, e.g., J.A. 5948–49 (Debriefing
Letter to HPI). FAR 15.506 sets forth the required dead-
lines for “[p]ost[-]award debriefing of offerors” and pro-
vides that upon written request by any offeror “within 3
days after the date on which that offeror has received
notification of contract award,” see FAR 15.506(a)(1), an
agency must, within five days, see FAR 15.506(a)(2),
DELL FED. SYS., L.P. v. UNITED STATES 25
debrief said offerors as to, inter alia, the prices of the
“successful offeror,” FAR 15.506(d)(2); see FAR 15.506(d)
(outlining the “minimum” required post-award debriefing
information). However, in this case, a month later and
after protests were filed at the GAO, as discussed supra,
see Background Section III, the Army conceded that
procurement defects occurred, and it decided to proceed
with its corrective action to open discussions following
GAO approval, see J.A. 7021 (MFR dated March 22, 2017).
Then, on March 27, 2017, during the course of discussions
and “[a]s part of the . . . corrective action, the [Ar-
my] . . . decided to release all offerors’ total proposed
prices in an effort to remedy the potential competitive
advantage held by the offerors in the competition whose
prices were not disclosed.” J.A. 7378; see J.A. 7379–80
(listing total bid prices for all fifty-five offerors whose bids
were deemed responsive).
We find no binding authority preventing, on the facts
of this case, the release of the pricing information of all
offerors. Moreover, we find that the Government provides
a reasonable explanation for its actions. Under these
circumstances, the Government concluded it would, upon
rebidding, level the playing field for those successful
offerors who did not propose the lowest price and now
deserve a chance to revise their proposals to fairly com-
pete during the rebidding process. See Oral Arg. at 8:54–
9:51 (Q: “It seems that the Army . . . decided in fairness
that since [offerors] now have a target to shoot at––
namely, they now know what the awardee listed for
everything, so they know how to come in under it–– [did]
it seem[] only fair . . . to list everyone else’s [prices]?”
A: “Yes, your Honor . . . . In this case, . . . the initial
awardees, they were not the lowest priced offerors. So, if
the offerors who were not initially technically acceptable,
they get a chance to revise their proposals, the initial
awardees may likely be pushed out of the competition.”
Q: “When they did release all of the numbers that each
26 DELL FED. SYS., L.P. v. UNITED STATES
person gave in the proposal, did they strip [the] name[s] of
the proposer?” A: “That’s right your Honor.”). We find
this to be reasonable action in light of a defective pro-
curement, which the parties concede was defective. See
supra n.10; see also Oral Arg. at 29:57–30:07 (conceding,
by Dell’s counsel, that “[w]e won the procurement submit-
ting a technically acceptable offer, . . . [but] to a defective
procurement”).
The FAR explains that, when conducting discussions,
“[a]t a minimum, the [CO] must . . . indicate to, or discuss
with, each offeror still being considered for award, [inter
alia,] deficiencies” in the offeror’s proposal “to which the
offeror has not yet had an opportunity to respond.”
FAR 15.306(d)(3). The Army only proposes to allow an
offeror to “address deficiencies in [their] proposal” and
“make revisions to correct the deficiencies listed” by the
Army. J.A. 7097 (noting in letter opening discussions
with offeror that “[i]f you make changes to areas of your
technical proposal that have already been found accepta-
ble, you are at risk of being found technically unaccepta-
ble”). Given these reasonable limitations, the corrective
action has a rational basis.
Nevertheless, the Appellees maintain that clarifica-
tions are the only reasonable corrective action. See, e.g.,
Dell’s Br. 29, 31. However, requests for clarifications are
“limited exchanges,” designed to “clarify certain aspects of
proposals” or “resolve minor or clerical errors” in the
offerors’ proposals. FAR 15.306(a)(1)–(2). “Clarifications
are not to be used to cure proposal deficiencies or material
omissions, materially alter the technical or cost elements
of the proposal, or otherwise revise the proposal.” JWK
Int’l Corp. v. United States, 52 Fed. Cl. 650, 661 (2002)
(brackets and citation omitted), aff’d, 56 F. App’x 474
(Fed. Cir. 2003). As discussed above, the errors caused by
the ambiguities in the Equipment Submission Form were
material, rather than minor or clerical. The Court of
Federal Claims acknowledged as much when it stated
DELL FED. SYS., L.P. v. UNITED STATES 27
that while “many of the losing offerors in this procure-
ment made minor or clerical errors” allegedly capable of
correction through clarifications, Dell, 133 Fed. Cl. at 105,
there were offerors that made “more wide-reaching er-
rors” that were not capable of correction via clarification,
id. at 106. Thus, the Army rationally chose discussions,
rather than clarifications, for all offerors as the appropri-
ate corrective action to address these material errors,
especially due to the Solicitation’s requirement to include,
should the Army decide to open discussions, “all pro-
posals, to include small business proposals previously
removed for unacceptability.” See J.A. 1384; Alfa, 175
F.3d at 1368 (holding that an “agency is strictly bound by
[the] terms” of the standards set out in the solicitation). 12
12 The Appellees also contend that our precedent in
Systems Application counsels against reinstating the
Army’s selected corrective action because “post-award
corrective action that allows previously unsuccessful
offerors to revise their proposals after the awardee’s price
has been disclosed causes harm to the original awardees.”
Red River’s Br. 4–5 (citing Sys. Application & Techs., Inc.
v. United States, 691 F.3d 1374 (Fed. Cir. 2012)). Reli-
ance on Systems Application is improper here because
that case analyzed whether a protestor suffered an injury-
in-fact to have standing, see 691 F.3d at 1382–83, which is
not at issue here. And unlike in Systems Application, the
Court of Federal Claims here found the Army’s decision to
take corrective action (despite disagreeing with the pro-
posed corrective action) was justified due to likely violat-
ing a regulation. Dell, 133 Fed. Cl. at 103–04; see id. at
104 (“Therefore, it was rational for the MFR to find that
the Army’s failure to conduct discussions constituted a
procurement defect.”).
28 DELL FED. SYS., L.P. v. UNITED STATES
Finally, Appellees argue that the Army’s failure to
consider other “[m]ore [l]imited” corrective actions is
arbitrary and capricious. Dell’s Br. 33. The Army was
not legally required to address every option, but rather to
provide a reasonable corrective action and adequately
explain its reasoning for doing so. See Chapman, 490
F.3d at 938. The Army rationally decided to ameliorate a
defective solicitation by re-opening the procurement,
following the applicable regulation, and engaging in
discussions to award new contracts. Even if we agreed
with Appellees that the Army had other, better options
available, we nevertheless conclude that the option it
chose was reasonable, and we therefore refuse to “substi-
tute [our] judgment” for that of the Army by determining
whether there was another, perhaps preferable solution.
See R & W Flammann GmbH v. United States, 339 F.3d
1320, 1322 (Fed. Cir. 2003) (“[W]hen an officer[’]s decision
is reasonable a court may not substitute its judgment for
that of the agency.”).
Accordingly, we hold that the original corrective ac-
tion was rationally related to the procurement defect and
that the Court of Federal Claims abused its discretion in
finding that Appellees demonstrated, inter alia, success
on the merits. Because proving success on the merits is a
necessary element for a permanent injunction, 13 we
13 We may balance the remaining three Centech
permanent injunction factors—irreparable harm, balance
of hardships, and public interest—when deciding whether
to grant or deny injunctive relief; however, because we
find the Court of Federal Claims erred in finding that the
Appellees had “succeeded on the merits,” the great weight
we accord this factor as compared to the other three
precludes the possibility of an injunction. See Centech
Grp., 554 F.3d at 1037; see also Hallmark-Phoenix 3, LLC
DELL FED. SYS., L.P. v. UNITED STATES 29
reverse the Court of Federal Claims’ grant of an injunc-
tion. The Army may proceed with its proposed corrective
action, which we hereby reinstate.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the Judgment
of the U.S. Court of Federal Claims is
REVERSED
v. United States, 429 F. App’x 983, 984 (Fed. Cir. 2011);
Chrysler Motors Corp. v. Auto Body Panels of Ohio,
Inc., 908 F.2d 951, 953 (Fed. Cir. 1990) (“If the injunction
is denied, the absence of an adequate showing with regard
to any one factor may be sufficient, given the weight or
lack of it assigned the other factors, to justify the deni-
al.”). Moreover, we find that Appellees cannot meet their
burden to justify a permanent injunction even if the three
remaining permanent injunction factors balanced togeth-
er in equilibrium, and therefore reversal is appropriate
here because any alternative result on remand necessarily
would have been an abuse of discretion. Cf. Robert Bosch
LLC v. Pylon Mfg. Corp., 659 F.3d 1142 (Fed. Cir. 2011)
(weighing permanent injunction factors and reversing
instead of remanding a lower court’s decision to deny a
permanent injunction).