Intelligent Waves, LLC v. United States ( 2017 )

In the United States Court of Federal Claims
Nos. 17-1765C and 17-1842C
(Filed Under Seal: December 1, 2017)
(Reissued for Publication: December 19, 2017) *
*************************************
INTELLIGENT WAVES, LLC and *
MISSION1ST GROUP, INC., *
*
Plaintiffs, * Post-Award Bid Protest; Motions for a
* Temporary Restraining Order and
v. * Preliminary Injunction; Likelihood of
* Success on the Merits; Organizational and
THE UNITED STATES, * Consultant Conflict of Interest; Evaluation
* of Proposals; FAR 15.305(a); Irreparable
Defendant, * Injury; Balance of Harms; Public Interest;
* National Defense; National Security;
and * Failure to Submit a Declaration or
* Affidavit Supplying Evidentiary Support
PROFESSIONAL SOLUTIONS1, LLC, *
*
Defendant-Intervenor. *
*************************************
Lee Dougherty, Washington, DC, and Christian B. Nagel, Tysons, VA, for plaintiffs.
Russel J. Upton, United States Department of Justice, Washington, DC, for defendant.
Katherine S. Nucci, Washington, DC, for defendant-intervenor.
OPINION AND ORDER
SWEENEY, Judge
In this bid protest, plaintiffs Intelligent Waves, LLC (“Intelligent Waves”) and
Mission1st Group, Inc. (“Mission1st”) challenge the award of a five-year Indefinite Delivery
Indefinite Quantity contract issued by the United States Defense Information Systems Agency
(“DISA”) to defendant-intervenor Professional Solutions1, LLC (“ProSol”) for certain satellite
communications support services. Specifically, Intelligent Waves alleges that the DISA
*
The court issued this Opinion and Order under seal on December 1, 2017, and directed
the parties to submit proposed redactions. This reissued Opinion and Order incorporates the
redactions proposed by the parties, with some nonsubstantive typographical changes. All
redactions are indicated by a bracketed ellipsis (“[. . .]”).
improperly evaluated the proposals submitted by Intelligent Waves and ProSol, and Mission1st
alleges that the DISA improperly evaluated the proposals submitted by Mission1st and ProSol.
Currently before the court are Intelligent Waves’s and Mission1st’s motions for a temporary
restraining order and a preliminary injunction enjoining DISA from lifting a stop-work order that
is currently in place. Because neither protestor is likely to succeed on the merits of its claim, and
both the balance of harms and the public interest weigh in favor of defendant, the court denies
both motions.
I. BACKGROUND
The Iridium constellation consists of sixty-six cross-linked satellites that operate “as a
fully meshed network.” Administrative R. (“AR”) 346. The DISA’s Enhanced Mobile Satellite
Services (“EMSS”) Program Office owns and manages an “EMSS-controlled satellite gateway
that leverages the Iridium satellite constellation.” Id. The EMSS Program Office provides
“cradle to grave” satellite communications services, including the sale and provision of EMSS
devices, a dedicated help desk, encrypted communications, and comprehensive operation and
maintenance of the EMSS gateway. Id. at 346-47. One of the available services is the
Distributed Tactical Communications System (“DTCS”). Id. at 347. The DTCS functions as a
“push-to-talk” service that allows “one-to-many voice communication.” Id. The DTCS is the
“EMSS variant” of the Iridium commercial push-to-talk (“CPTT”) service. Id. End users of the
EMSS Program Office services include the United States Department of Defense (“DoD”), other
federal agencies, state and local governments, Five Eyes nations, and other sponsored
governments and entities. 1 Id. at 346.
The DISA reports to the DoD Chief Information Officer (“CIO”). Dep’t of Def.
Instruction 8420.02 (Sept. 15, 2016) at 10. 2 DoD components are required to procure mobile
satellite services via procurements managed by the DISA. Id. at 23. Waivers are allowed
through the DoD CIO when “EMSS cannot satisfy the user requirement.” Id.
1
The Five Eyes nations are Australia, Canada, New Zealand, the United Kingdom, and
the United States. Ashley S. Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St.
L.J. 713, 741 (2016). The Five Eyes agreement is a “long-standing secret intelligence
agreement” that “allocates electronic surveillance collection among the five states and anticipates
a high level of coordination and intelligence sharing.” Id.2
Department of Defense Instruction 8420.02 is reproduced at Exhibit 1 of Intelligent
Waves’s complaint. See ECF No. 1-1.
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A. The Request for Proposals
On December 2, 2016, the DISA issued Request for Proposals number HC1013-16-R-
0014 (the “RFP”). 3 AR 59. The RFP contemplated a single five-year contract for Global
Logistical Services Management support (“ELOG”) that would function as a follow-on effort to
an existing contract, and was designated as a Service-Disabled Veteran-Owned Small Business
(“SDVOSB”) set aside. 4 Id. at 59, 341, 346-47, 4038. The Performance Work Statement
(“PWS”) was organized into eight task areas—Operational Support, Logistical and Procurement
Support, Training Support, Program Management Support, Technical Support, Highly Qualified
Expert/Subject Matter Expert Support, Operations Center Support, and Transition Support. Id. at
348. Offerors were required to submit their proposals in five volumes: Executive Summary,
Technical/Management, Price, Past Performance, and Contract Documentation. Id. at 402. As
part of the Contract Documentation volume, offerors were directed to include an Organizational
and Consultant Conflict of Interest (“OCCI”) Mitigation Plan or a statement that no OCCI was
present. Id. at 408. The OCCI mitigation plan was to be “evaluated on an acceptable or non-
acceptable basis,” and an unacceptable plan could result in not being selected for award. Id. at
416.
The RFP provided that the contract would be awarded to the “responsible offeror whose
proposal [was] determined to represent the overall best value to the Government using a best
value tradeoff evaluation process.” Id. at 409. Proposals were evaluated based on three
factors—Technical/Management Approach, Past Performance, and Price. Id. The non-price
factors were “significantly more important” than the price factor. Id. Technical/Management
Approach, which was more important than Past Performance, was comprised of three subfactors
of equal importance:
• Subfactor 1—Remote Mobile Telecommunications Services
Management Expertise,
• Subfactor 2—Management Plan, and
• Subfactor 3—Sample Task Order.
Id. at 409-10. Technical/Management Approach was to be evaluated
3
The RFP was subsequently amended six times. AR 344. The last amendment was
issued on January 26, 2017. Id.
4
The incumbent contractor is currently performing under a contract extension. See AR
1662.
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using a combined technical/management rating and risk rating.
Subfactor ratings shall not be rolled up into an overall color
rating for the technical/management factor. The combined
technical/risk rating includes consideration of risk in conjunction
with the strengths, weaknesses, and deficiencies in determining
technical ratings.
Id. at 409. The possible ratings were described as follows:
Color Rating Description
Blue Outstanding Proposal meets requirements and
indicates an exceptional approach and
understanding of the requirements.
Strengths far outweigh any
weaknesses. Risk of unsuccessful
performance is very low.
Purple Good Proposal meets requirements and
indicates a thorough approach and
understanding of the requirements.
Proposal contains strengths which
outweigh any weaknesses. Risk of
unsuccessful performance is low.
Green Acceptable Proposal meets requirements and
indicates an adequate approach and
understanding of the requirements.
Strengths and weaknesses are
offsetting or will have little or no
impact on contract performance.
Risk of unsuccessful performance is
no worse than moderate.
Yellow Marginal Proposal does not clearly meet
requirements and has not
demonstrated an adequate approach
and understanding of the
requirements. The proposal has one
or more weaknesses which are not
offset by strengths. Risk of
unsuccessful performance is high.
Red Unacceptable Proposal does not meet requirements
and contains one or more
deficiencies. Proposal is
unawardable.
Id. at 414. The RFP also included relevant definitions:
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• Deficiency—a material failure of a proposal to meet a
Government requirement or a combination of significant
weaknesses in a proposal that increases the risk of unsuccessful
contract performance to an unacceptable level.
• Risk—as it pertains to source selection, is the potential for
unsuccessful contract performance. The consideration of risk
assesses the degree to which an offeror’s proposed approach to
achieving the technical factor or subfactor may involve the risk
of disruption of schedule, increased cost or degradation of
performance, the need for increased Government oversight,
and the likelihood of unsuccessful contract performance.
• Significant weakness—a flaw that appreciably increases the
risk of unsuccessful contract performance.
• Strength—an aspect of an offeror’s proposal that has merit or
exceeds specified performance or capability requirements in a
way that will be advantageous to the Government during
contract performance.
• Uncertainty—any aspect of a non-cost/price factor proposal for
which the intent of the offeror is unclear (e.g., there is more
than one way to interpret the proposal or inconsistencies in the
proposal indicating there may have been an error, omission, or
mistake).
Id. at 415.
Past Performance was evaluated as either acceptable or unacceptable:
Rating Description
Acceptable Based on the offeror’s performance record, the
Government has a reasonable expectation that
the offeror will successfully perform the
required effort, or the offeror’s performance
record is unknown.
Unacceptable Based on the offeror’s performance record, the
Government does not have a reasonable
expectation that the offeror will be able to
successfully perform the required effort.
Id.
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The RFP also incorporated by reference several Federal Acquisition Regulation (“FAR”)
clauses, id. at 416-22, including FAR 52.219-14, Limitations on Subcontracting, id. at 418. In
addition, the RFP provided contact information for the DISA contracting officer. Id. at 139
(original RFP), 423 (final amendment). Intelligent Waves, Mission1st, and ProSol, as well as
other potential offerors, submitted questions prior to the proposal deadline, some of which were
submitted after the question posting deadline. See, e.g., id. at 162-68 (Intelligent Waves), 169
(Mission1st), 170-74 (ProSol), 490-92 (Mission1st), 503-05 (ProSol). Many of Intelligent
Waves’s questions focused on proposal formatting requirements. See generally id. at 164-68.
Intelligent Waves also commented on the evaluation criteria for past performance, suggesting
that (1) the DISA incorporate an offeror’s “proven experience to perform work” in “austere
environments” as contemplated by the RFP and (2) an “Acceptable” past performance rating for
offerors with no past performance “puts the government and warfighter at risk for [un]successful
performance on the awarded contract.” Id. at 167. Mission1st sought more information
regarding the relative importance of factors and subfactors, price information, and proposal
formatting. Id. at 169, 490-92. ProSol asked questions regarding security clearances,
compliance with United States Department of State regulations, and proposal formatting
requirements. Id. at 170-74, 503-05. The DISA responded to 106 total questions that were
submitted by the question posting deadline. Id. at 1664. See generally id. at 4666-701
(containing all 106 of the questions and answers).
B. The Proposals
Intelligent Waves, Mission1st, ProSol, and three other offerors eventually submitted
proposals. Id. at 1665, 4048.
In its proposal, Intelligent Waves described “Team IW” as being “comprised of
[Intelligent Waves], prime offeror, and [. . .], significant subcontractor.” Id. at 629. The
Technical/Management volume of Intelligent Waves’s proposal consistently referred to “Team
IW.” See, e.g., id. at 623 (containing a list of tables and drawings). Intelligent Waves
represented that it “ha[d] entered into a binding written agreement with our significant team
member [. . .],” and emphasized that [. . .] was “[. . .].” Id. at 648. Two out of the three prior
contracts on which Intelligent Waves relied in the Past Performance volume of its proposal were
[. . .] contracts, including the [. . .]. Id. at 680. Intelligent Waves reported “N/A” for its
organizational structure change history, and noted that [. . .] was organized in 2006 and had not
experienced any significant organizational changes since 2009. Id. at 700.
Intelligent Waves also included an OCCI mitigation plan as part of the Contract
Documentation volume of its proposal. See generally id. at 761-65. Intelligent Waves stated
that, “in order to avoid an apparent or perceived” OCCI, neither Intelligent Waves nor [. . .]
would “provide systems engineering or technical direction[,] prepare specification or work
statements and/or objectives for requirements[,] or[] provide evaluation services or obtain access
to propriety information in the execution of the EMSS ELOG contract.” Id. at 761. Intelligent
Waves acknowledged that [. . .] has “conducted historical sales of Iridium commercial devices,
namely [CPTT] devices and ancillary items,” and therefore neither Intelligent Waves nor [. . .]
would “pursue the sale or operational support of any current or future Iridium [CPTT] devices to
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new customers who are eligible for Iridium airtime services under the Government’s ‘Iridium
Flat-Fee Airtime’ (IFFA) contract . . . and the contract awarded from this solicitation . . . unless
expressly approved by the EMSS waiver process.” Id. Since [. . .] planned to continue to
provide support to its existing Iridium customers, such as the United States Army Central
Command, [. . .] promised to segregate employees supporting its Iridium customers from those
working on the EMSS ELOG contract. Id. at 762.
In the Technical/Management volume of its proposal, Mission1st provided a management
plan touting its [. . .]. Id. at 525. See generally id. at 533-40 (containing Mission1st’s
management plan). Mission1st reported that [. . .] provided a subcontractor management plan.
Id. at 535. In its staffing plan, Mission1st averred that it had a thirteen-year history of
“successfully recruit[ing] and retain[ing] hundreds of personnel on DoD contracts at locations
worldwide,” including [. . .] currently operating throughout the Middle East who have satellite
communications experience and technical certifications. Id. at 535-36. Mission1st also
highlighted its “proven ability to quickly grow and shrink [its] staff in response to changing work
conditions.” Id. at 538.
In discussing its past performance, Mission1st indicated that it has supported “hundreds
of projects for DoD software and systems,” and noted that it was then the prime contractor for
various communications and infrastructure support, information technology services, and
professional engineering services contracts. Id. at 577. According to Mission1st, the three
contracts listed in the Past Performance volume of its proposal “cover[ed] every aspect of the
EMSS ELOG PWS.” Id.; see also id. ([. . .]).
In its proposal, ProSol declared that it has “fifteen years of technical and recent
operational experience supporting warfighters around the world” in addition to its Top Secret
facility clearance that makes it “capable of independently executing every aspect of the
EMSS/ELOG program requirements.” Id. at 877. ProSol emphasized its “partnership with
Marshall Communications Corporation [(“Marshall”)],” which ProSol described as a “best-in-
class” DISA field service representative provider with “Remote Mobile Telecommunications
Services Management” experience fulfilling “nearly the exact requirements as the ELOG
Program.” Id. ProSol noted that Marshall is a Veteran-Owned Small Business. Id. In the
Technical/Management Approach volume of its proposal, ProSol described its experience
working with the DISA to provide logistics, operations and maintenance, warranty, help desk,
technical support, and training services in the Middle East and elsewhere. Id. at 887. With
respect to its organizational structure, ProSol explained that ProSol and Marshall would “execute
a comparable amount of work,” with the exception that ProSol would exclusively perform
program management functions, because ProSol and Marshall was a “well-balanced team” with
respect to technical knowledge and experience. Id. at 896. ProSol noted, however, that it would
perform a majority of the “direct labor activities” itself, consistent with the set aside. Id.; see
also id. at 3790 (“As a SDVOSB and in compliance with FAR part 52.219-14, ProSol will
perform at least 51% of the Labor on this contract.”).
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ProSol listed three contracts in the Past Performance volume of its proposal: (1) a $15.6
million contract between ProSol and the United States Marine Corps for communications,
systems, and technology support, id. at 955; (2) a $43.3 million contract between Marshall and
the United States Navy to provide operational, logistical and procurement, technical, and subject
matter support to the DISA in the Middle East and elsewhere, id. at 958; and (3) $2 million in
subcontracts between ProSol and the United States Department of Homeland Security to provide
logistics, help desk, project management, training, communications, and subject matter expert
services, id. at 963.
C. Discussions
After all of the proposals were submitted, the results of initial evaluations were as
follows:
Intelligent
Mission1st ProSol
Waves
Technical/Management Approach
Subfactor 1 Marginal Unacceptable Outstanding
Subfactor 2 Marginal Good Outstanding
Subfactor 3 Acceptable Acceptable Outstanding
Past Performance
Acceptable Acceptable Acceptable
Price
[. . .] [. . .] $32,953,522
Id. at 1670. The contracting officer recommended holding discussions and keeping all six
offerors in the competitive range because each offeror had a “reasonable chance of being
selected for award following discussions.” Id. at 1669. Upon approval of the Source Selection
Authority, evaluation notices (“ENs”) were issued as follows:
• Intelligent Waves—five ENs (two technical in nature, one
regarding OCCI, and two with respect to price);
• Mission1st—six ENs (four technical and two price); and
• ProSol—one EN (technical).
Id. at 1673.
Two rounds of discussions were held. The first round of ENs was transmitted on June
16, 2017. Id. at 1677 (Intelligent Waves), 1739 (Mission1st), 1756 (ProSol). The second round
of ENs was transmitted on August 16, 2017. Id. at 2499 (Intelligent Waves), 2533 (Mission1st),
2542 (ProSol).
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During the first round of discussions, the contracting officer sent an EN to Intelligent
Waves in which he observed that [. . .], Intelligent Waves’s major subcontractor, “sells and
supports substantial commercial Iridium products and airtime, especially in the Middle East, and
those products and services essentially compete with the EMSS Program,” and that Intelligent
Waves “did not demonstrate knowledge of mobile systems and devices . . . outside of [its]
partnership with [. . .].” Id. at 1680. He noted that [. . .]’s status as a seller of Iridium products
“increase[d] the risk of non-objective expertise and support being provided” on the EMSS ELOG
contract. Id. at 1681. He then explained that the proposed firewall among [. . .] employees was
insufficient because “the impaired objectivity pertains [to] [. . .] as an organization,” not to
individual groups of employees. Id. at 1683; see also id. at 1689-93 (discussing the insufficiency
of Intelligent Waves’s OCCI mitigation plan). The contracting officer noted that [. . .] was not
an Iridium reseller [. . .]. Id.
Intelligent Waves submitted an updated OCCI mitigation plan in response to this EN. Id.
at 2141. However, the contracting officer remained concerned that the updated OCCI mitigation
plan failed to adequately address the concern regarding [. . .]’s “impaired objectivity.” Id. at
2506, 2517-18. Specifically, as reflected in a subsequent EN sent to Intelligent Waves, the
contracting officer remarked that part of the updated mitigation plan involved utilizing only
Intelligent Waves direct employees to perform certain PWS activities, which was problematic for
the DISA because those activities “are integrated into larger task order requirements . . . and
cannot reasonably be segregated without imposing a substantial burden on the government that
elevates the risk of unsuccessful performance.” Id. at 2507. Further, the contracting officer
noted that the determination of Intelligent Waves that commercial Iridium CPTT services did not
compete with EMSS DTCS services ran contrary to the DISA’s view. Id. at 2510. He also
stated that Intelligent Waves failed to address how [. . .]’s legacy customers would be dealt with.
Id. at 2510, 2517. Ultimately, the contracting officer advised that it was “unacceptable to the
Government” for a contractor to [. . .]. Id. at 2518. Intelligent Waves responded to this EN with
another updated OCCI mitigation plan. Id. at 2805-06.
D. Evaluation of Proposals
After the second round of discussions, the revised proposals were evaluated. During its
evaluation, the evaluation team determined that Intelligent Waves did not resolve any of its non-
price ENs, id. at 4154, 4161, and that Mission1st resolved all of its non-price ENs, id. at 4150-
52. The final evaluations were as follows:
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Intelligent
Mission1st ProSol
Waves
Technical/Management Approach
Subfactor 1 Marginal Acceptable Outstanding
Subfactor 2 Marginal Good Outstanding
Subfactor 3 Acceptable Acceptable Outstanding
Past Performance
Acceptable Acceptable Acceptable
Price
[. . .] [. . .] $30,295,442
Id. at 4128-29, 4203.
The evaluation team assigned the following strengths and weaknesses with respect to the
Technical/Management Approach factor:
Intelligent
Mission1st ProSol
Waves
Technical/Management Approach
7 strengths
Subfactor 1 [. . .] [. . .]
0 weaknesses
8 strengths
Subfactor 2 [. . .] [. . .]
0 weaknesses
1 strength
Subfactor 3 [. . .] [. . .]
0 weaknesses
Id. at 4134-40 (ProSol), 4149-53 (Mission1st), 4153-63 (Intelligent Waves). With respect to the
Past Performance factor the evaluation team noted that all three of ProSol’s past performance
references returned questionnaires, and each of ProSol’s three prior contracts were deemed
recent, relevant, and to have an acceptable quality of performance. Id. at 4169-74. Intelligent
Waves also had all three past performance contracts rated as recent, relevant, and having an
acceptable quality of performance. Id. at 4195. Mission1st similarly had all three past
performance contracts rated as recent and relevant, but only one was deemed to have an
acceptable quality of performance (with the remaining two unknown). Id. at 4189-90.
Ultimately, the evaluation team recommended that ProSol be awarded the contract. Id. at
4122, 4203. Specifically, in comparing ProSol’s and Mission1st’s proposals, the evaluation team
determined that ProSol’s approach under subfactor 1 had “numerous technical advantages over
that of [Mission1st],” id. at 4211; that ProSol’s “proposed organizational structure [was] superior
to [Mission1st’s]” under subfactor 2, id. at 4212; and that ProSol’s sample task order under
subfactor 3 “contained advantages” over Mission1st, id. at 4213. The evaluation team further
found that there was “no advantage to either proposal under the past performance factor,” but
ProSol’s “numerous strengths that benefit the Government in various ways that [Mission1st’s]
proposal is lacking” and concomitant lower risk of unsuccessful performance outweighed
Mission1st’s slight price advantage. Id. at 4214.
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Then, in comparing the proposals of ProSol and Intelligent Waves, the evaluation team
determined that “[t]he relative merits of ProSol’s proposed approach to subfactor 1 [were]
technically superior to the relative merits of [Intelligent Waves’s] proposed approach,” id. at
4219; that “ProSol’s proposed organization structure and proposed cost management plan [were]
superior to those of [Intelligent Waves] with strengths in [ProSol’s] approach for recruiting and
retaining personnel, . . . subcontract management, organizational structure methodology, and . . .
flexibility and performance” under subfactor 2, id. at 4220; and that ProSol’s sample task order
under subfactor 3 was “exceptional” and thus “superior” to the adequate sample task order
submitted by Intelligent Waves, id. The evaluation team referred to [. . .]’s involvement as
“present[ing] a risk of impaired objectivity in [Intelligent Waves’s] performance of the contract,”
but noted that “[e]ven if these weaknesses related to . . . utilizing [. . .] as a subcontractor were
completely mitigated, ProSol’s technical advantages . . . outweigh[ed Intelligent Waves’s] price
advantage.” Id. at 4221.
E. The Source Selection Decision and Contract Award
After reviewing the evaluation team’s report, the Source Selection Authority determined
that ProSol’s proposal “offer[ed] the best value” to the DISA. Id. at 4413; accord id. at 4501.
The Source Selection Authority observed that ProSol’s approach was “free of weaknesses and
deficiencies,” “contain[ed] sixteen strengths and no weaknesses,” and was “technically superior
to all other offerors.” Id. at 4501. Therefore, the Source Selection Authority explained, ProSol’s
“technical superiority” outweighed the lower prices proposed by Intelligent Waves and
Mission1st. Id. Because ProSol’s price was “balanced, complete, and fair and reasonable” and
ProSol “met all administrative requirements of the RFP,” the contracting officer was directed to
award the ELOG contract to ProSol. Id.
The ELOG contract was officially awarded to ProSol on October 20, 2017. Id. at 4299.
Both Intelligent Waves and Mission1st had been notified, three days prior to the official award,
of their non-selection and that ProSol was determined to represent the overall best value. Id. at
4090 (Intelligent Waves), 4101 (Mission1st). Both Intelligent Waves and Mission1st received
written debriefings on October 20, 2017. See generally id. at 4286-90 (Intelligent Waves), 4295-
97 (Mission1st). The contracting officer answered follow-up questions submitted by Mission1st
on October 24, 2017. See id. at 4515-16.
F. Procedural History
Mission1st filed a protest at the Government Accountability Office (“GAO”) on October
25, 2017. See generally id. at 4521-29. Mission1st argued that the DISA improperly evaluated
ProSol’s proposal because (1) ProSol did not have the expertise to meet the requirements for
subfactor 1 of the Technical/Management Approach factor, (2) Mission1st should have received
an “Outstanding” rating for subfactor 2, (3) ProSol does not have sufficient experience to
warrant an “Acceptable” past performance rating and thus Mission1st should have been rated “at
least equivalent” to ProSol with respect to its overall technical capability, and (4) ProSol would
be unable to adhere to the limitation on subcontracting clause contained in the RFP. Id. at 4524-
28. Pursuant to FAR 52.233-3, a stop-work order was issued on October 30, 2017. Id. at 4558.
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ProSol filed a motion for summary dismissal of the protest on November 13, 2017. Id. at 4577-
80. The DISA then filed a motion to dismiss the protest on November 15, 2017, id. at 4621,
arguing generally that Mission1st’s protest grounds were “untimely, speculative, and fail[ed] to
state a valid basis of protest,” id. at 4623.
In the meantime, on November 9, 2017, Intelligent Waves filed the instant protest in this
court, arguing generally that the DISA improperly evaluated Intelligent Waves’s and ProSol’s
proposals, and further arguing that the DISA’s determination regarding the insufficiency of
Intelligent Waves’s OCCI mitigation plan was arbitrary and capricious because it followed a
plan [. . .]. Compl. ¶¶ 3-4. Intelligent Waves explained that (1) ProSol’s “lack of demonstrated
‘expertise’” precluded ProSol from receiving an “Outstanding” rating under subfactor 1 of the
Technical/Management Approach factor, id. ¶ 69, (2) Intelligent Waves “itself” had the requisite
experience to perform under subfactor 1 and thus its assessment of a weakness was improper, id.
¶¶ 73, 77, and (3) ProSol lacked the requisite experience to receive an “Outstanding” rating
under subfactor 2, id. ¶ 84.
On November 16, 2017, the DISA requested that the GAO dismiss Mission1st’s protest
pursuant to 4 C.F.R. § 21.11(b) because the protest concerned the same procurement as the
instant bid protest. AR 4706. Mission1st opposed DISA’s dismissal, id. at 4741-42, while
ProSol agreed that the GAO protest should be dismissed, id. at 4743. The GAO issued a
dismissal order on November 21, 2017, explaining that the GAO would not entertain protests
“where the matter involved is the subject of litigation before a court of competent jurisdiction . . .
[e]ven where the specific issues before the court are not the same as those raised [at the GAO]
. . . if there is a reasonable possibility that the court’s disposition of the matter [would] render a
decision by [the GAO] academic,” and that the Intelligent Waves complaint in this court called
into question ProSol’s expertise and capabilities and the reasonableness of the DISA’s
evaluation. Id. at 4746-47.
On November 28, 2017, Mission1st filed its complaint in this court, asserting the same
claims that it presented to the GAO. That case was transferred to the undersigned and
consolidated with this case on November 29, 2017. Because the DISA indicated that it would lift
its stop-work order on December 1, 2017, see Def.’s Opp’n to Pls.’ Mots. for Emergency
Injunctive Relief (“Def.’s Opp’n”) Attach. 3, ECF 29-1, Intelligent Waves and Mission1st filed
motions for a temporary restraining order and a preliminary injunction. Defendant responded on
November 30, 2017, and the court heard oral argument on December 1, 2017.
II. STANDARD OF REVIEW
The United States Court of Federal Claims (“Court of Federal Claims”) possesses
“jurisdiction to render judgment on an action by an interested party objecting to . . . 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) (2012), and 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,” id. § 1491(b)(2). In bid protests, the Court of
Federal Claims reviews the challenged agency action pursuant to the standards set forth in 5
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U.S.C. § 706. Id. § 1491(b)(4). Although section 706 contains several standards, “the proper
standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing
court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.’” Banknote Corp. of Am. v. United States, 365 F.3d
1345, 1350 (Fed. Cir. 2004); accord Per Aarsleff A/S v. United States, 829 F.3d 1303, 1309
(Fed. Cir. 2016). The “arbitrary and capricious” standard is “highly deferential” and requires
courts to sustain agency actions that demonstrate “rational reasoning and consideration of
relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.
Cir. 2000). In other words, reviewing courts conduct a “rational basis” review of the agency
action at issue, rather than an “independent de novo assessment.” Turner Constr. Co., Inc. v.
United States, 645 F.3d 1377, 1384-85 (Fed. Cir. 2011) (internal quotation marks omitted).
Rule 65 of the Rules of the United States Court of Federal Claims guides the court in
awarding preliminary injunctive relief. Preliminary injunctive relief is “an extraordinary and
drastic remedy.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (internal
quotation marks omitted); accord FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993);
Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 316 (2009). A protestor “seeking a preliminary
injunction must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer
irreparable harm in the absence of relief, that the balance of equities tips in [its] favor, and that
an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008); accord Amidon, Inc. v. United States, 124 Fed. Cl. 517, 522 (2015). None of the four
factors, taken individually, is dispositive, and a “weakness of the showing regarding one factor
may be overborne by the strength of the others.” FMC Corp., 3 F.3d at 427. Conversely, “the
absence of . . . any one factor may be sufficient” to deny preliminary injunctive relief. Id.; see
also Wind Tower Trade Coal. v. United States, 741 F.3d 89, 100 (Fed. Cir. 2014) (“[A] showing
on one preliminary injunction factor does not warrant injunctive relief in light of a weak showing
on other factors.”); Atlanta Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed. Cir.
2009) (“[A] movant must establish the existence of both of the first two factors to be entitled to a
preliminary injunction.”). The award of preliminary injunctive relief is within the discretion of
the court. FMC Corp., 3 F.3d at 427. “When injunctive relief is warranted, it will only be issued
upon a showing by a preponderance of the admissible evidence.” Textron, Inc. v. United States,
74 Fed. Cl. 277, 287 (2006).
III. ANALYSIS
As an initial matter, the court finds that it has jurisdiction over the instant protests
because both Intelligent Waves and Mission1st have made nonfrivolous allegations that the
DISA improperly evaluated proposals. See Distributed Sols., Inc. v. United States, 539 F.3d
1340, 1345 n.1 (2008) (“A non-frivolous allegation of a statutory or regulatory violation in
connection with a procurement or proposed procurement is sufficient to establish jurisdiction.”).
Further, both Intelligent Waves and Mission1st have standing as “interested parties” because
each submitted a proposal and was determined to be in the competitive range. See CACI, Inc.-
Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983) (finding that a protestor “within the
‘zone of active consideration’” had “standing to challenge the proposed award”).
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A. Likelihood of Success on the Merits
To prevail on their motions for a preliminary injunction, either Intelligent Waves or
Mission1st must establish that it is likely to succeed on the merits of its protest. Under the
applicable standard of review, the court
may set aside a procurement action if (1) the procurement official’s
decision lacked a rational basis; or (2) the procurement procedure
involved a violation of regulation or procedure. A court reviews a
challenge brought on the first ground to determine whether the
contracting agency provided a coherent and reasonable explanation
of its exercise of discretion, and the disappointed bidder bears a
heavy burden of showing that the award decision had no rational
basis. When a challenge is brought on the second ground, the
disappointed bidder must show a clear and prejudicial violation of
applicable statutes or regulations.
Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations and internal
quotation marks omitted).
If the court finds that “the government acted without rational basis or contrary to law
when evaluating bids and awarding the contract,” it must then “determine, as a factual matter,
whether the bid protester was prejudiced by that conduct.” Bannum, Inc. v. United States, 404
F.3d 1346, 1351 (Fed. Cir. 2005). A bid protester demonstrates prejudice by “show[ing] that
there was a ‘substantial chance’ it would have received the contract award” absent the error
found by the court. Id. at 1353; see also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.
672, 695-97 (2010) (distinguishing “allegational prejudice” required to establish standing from
the “prejudicial error” required to prevail on the merits).
The court finds that neither Intelligent Waves nor Mission1st is likely to succeed on the
merits of their protests.
The gravamen of Intelligent Waves’s protest is that the DISA’s determination that [. . .]’s
Iridium sales presented an OCCI weakness was “arbitrary, capricious, and lack[ed] a rational
basis.” Intelligent Waves Mem. Supp. Mot. TRO & Mot. Prelim. Inj. (“Intelligent Waves
Mem.”) 20, ECF No. 24. A conflict of interest arises when a contractor “will evaluate its own
offers for products or services, or those of a competitor, without proper safeguards to ensure
objectivity to protect the Government’s interests.” FAR 9.505-3. At oral argument, counsel for
Intelligent Waves stressed that there is no competition between Iridium CPTT and EMSS DTCS
because the DoD CIO, who oversees the DISA, has the authority to grant waivers allowing DoD
agencies to procure Iridium CPTT services, and, in any event, the DoD components are not in
competition with one another because they fall under the same umbrella.
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Intelligent Waves’s argument concerning OCCI is unavailing. First, the DoD as a whole
is not considered one agency. DoD departments are the separate military departments (Army,
Navy, and Air Force—the Marine Corps is part of the Navy), and the various “defense agencies”
include the DISA, the Defense Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the United States Special Operations Command, the
Defense Logistics Agency, and others. See Defense Federal Acquisition Regulation Supplement
202.101. Thus, various components of the DoD are considered separate agencies. Second, it is
well within the DISA’s discretion to determine that Iridium CPTT and EMSS DTCS are
competing services. This determination is logical because both services “offer similar capability
. . . to the same customer markets,” AR 4435, and the DISA is free to prefer one over the other,
as it has consistently done. Third, that [. . .] is currently [. . .] is of no moment with respect to the
OCCI issue because (1) [. . .] did not become an Iridium reseller until after it [. . .] and (2) the
DISA is free to institute new requirements in new procurements. Fourth, Intelligent Waves
received multiple ENs regarding its OCCI weakness and failed to adequately address the DISA’s
concerns. The DISA explained its rationale at length in the ENs, in the technical evaluation, in
the source selection document, and in the debriefing. Simply put, Intelligent Waves cannot
overcome its “heavy burden,” Impresa Construzioni Geom. Domenico Garufi v. United States,
238 F.3d 1324, 1332-33 (Fed. Cir. 2001), of demonstrating that the DISA’s determination lacked
a rational basis.
Finally, even if the DISA erred in finding that [. . .]’s participation gave rise to an OCCI
and thus one or more weaknesses, there is no prejudicial error because the DISA found that
ProSol’s proposal was technically superior to Intelligent Waves’s proposal notwithstanding the
various issues concerning [. . .] and the OCCI. The OCCI only concerned subfactors 1 and 2.
Even if Intelligent Waves had also received fifteen total strengths across those two subfactors
(like ProSol) instead of [. . .], ProSol was still rated “Outstanding” for subfactor 3, compared to
Intelligent Waves’s “Acceptable” rating, based on the sample task orders.
Intelligent Waves also contends that the DISA “failed to adhere to the evaluation
requirements stated in the [RFP] when it found that ProSol warranted an outstanding rating under
Subfactor 1.” Intelligent Waves Mem. 27. It is axiomatic that proposals must be evaluated in a
manner that is “reasonable and consistent with the evaluation criteria and applicable statutes and
regulations,” and that the “merit of competing proposals is primarily a matter of agency
discretion.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (internal
quotation marks omitted); accord FAR 15.305(a) (providing that government agencies must
“evaluate competitive proposals and then assess their relative qualities solely on the factors and
subfactors specified in the solicitation”). Intelligent Waves provides no support for its argument
that the DISA did not follow the evaluation criteria set forth in the RFP beyond its averment that
ProSol’s experience was “insufficient to demonstrate ‘expertise’ in providing support in remote,
hostile locations.” Intelligent Waves Mem. 29. Intelligent Waves appears to argue that ProSol
cannot rely on the experience of its subcontractor partner to meet the experience requirement,
which runs counter to Intelligent Waves’s assertions that the experience of its own subcontractor
partner is relevant to capability determinations. Intelligent Waves cannot have it both ways.
“After all, in the law, what is sauce for the goose is normally sauce for the gander.” Heffernan v.
City of Paterson, 136 S. Ct. 1412, 1418 (2016). Regardless, the DISA provided detailed
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explanations of the relevant experience that ProSol brings to the table. Further, even if ProSol
had been rated lower than “Outstanding” for subfactor 1 of the Technical/Management Approach
factor, it was rated “Outstanding” in the remaining technical subfactors with myriad strengths.
Thus, if the OCCI-related issues discussed above were set aside and Intelligent Waves received
“Outstanding” ratings for subfactors 1 and 2, ProSol still would have been rated technically
superior. 5
Mission1st similarly avers that the DISA improperly assigned ProSol an “Outstanding”
rating in subfactor 1 because “ProSol has no experience performing computer facilities
management services on federal contracts of significant size and extremely limited experience in
the geographic region or battlefield environment(s) as required by the [RFP].” Mission1st Mem.
Supp. Mot. Injunctive Relief (“Mission1st Mem.”) 9, ECF No. 26. Mission1st’s argument
concerning ProSol’s subfactor 1 rating fails for the same reason that Intelligent Waves’s
argument regarding subfactor 1 failed—the DISA sufficiently explained the relevant experience
that ProSol brings to the table, with or without its subcontractor partner.
Mission1st also posits that it should have received an “Outstanding” rating for subfactor
2, rather than a “Good” rating, because it was assessed [. . .] that were described as
“outstanding,” see AR 4295-96, and [. . .]. Mission1st’s reasoning reflects an improper
application of the stated evaluation criteria. A “Good” rating was assigned to subfactors with
strengths that “outweigh[ed]” any weaknesses, while an “Outstanding” rating was assigned when
strengths “far outweigh[ed]” any weaknesses. In other words, Mission1st’s [. . .] in subfactor 2
did not necessarily compel an “Outstanding” rating for that subfactor, as outstanding as those
individual strengths may have been. Therefore, the DISA did not improperly rate Mission1st’s
proposal as “Good” for subfactor 2. But even if Mission1st had been assigned an “Outstanding”
rating, ProSol’s “Outstanding” rating—with eight strengths compared to [. . .]—likely would
have carried more weight in the DISA’s overall best value determination. Thus, if ProSol had
received a lower rating for subfactor 1, and Mission1st had received a higher rating for subfactor
2, it would not have been unreasonable for the DISA to determine that ProSol provided a
technically superior proposal.
With respect to past performance, Mission1st asserts that ProSol was undeserving of its
“Acceptable” rating. Mission1st invokes FAR 15.305(a)(2)(iv), which states that “an offeror
without a record of relevant past performance or for whom information on past performance is
not available . . . may not be evaluated favorably or unfavorably.” Mission1st avows that the
lack of a neutral past performance rating, in contravention to the FAR, “improperly allowed the
[DISA] to assign a favorable rating to offerors with no past performance.” Mission1st Mem. 12.
Mission1st’s argument here fails for two reasons. First, Mission1st did not raise this argument in
a pre-award protest. Contractors who have the opportunity to object to the terms of a
solicitation, but fail to do so, are precluded from later raising such objections in a bid protest.
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also Per
Aarsleff A/S, 829 F.3d at 1313. Second, even if there should have been a neutral rating available
5
Intelligent Waves contends only that it “would have received either Good or
Acceptable ratings under [subfactors 1 and 2].” Intelligent Waves Mem. 27.
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for past performance, it likely would not have changed the results. ProSol provided three past
performance references, all of which were deemed recent, relevant, and of acceptable quality. It
was therefore reasonable for ProSol to have been given an “Acceptable” rating on the Past
Performance factor.
Mission1st’s final assignment of error relates to the limitations on subcontracting. FAR
52.219-14(c)(1) provides that “[a]t least 50 percent of the cost of contract performance incurred
for personnel shall be expended for employees of the concern.” While Mission1st correctly
states the law, it fails to recognize that ProSol’s proposal does not violate the limitations on
subcontracting. ProSol demonstrated that it is acutely aware of the limitations on subcontracting,
and proposed to perform a majority of the contract work.
In sum, neither Intelligent Waves nor Mission1st is likely to succeed in demonstrating
that the DISA’s decision to award the EMSS ELOG contract to ProSol was arbitrary, capricious,
an abuse of discretion, or otherwise contrary to law. Nevertheless, for the sake of completeness,
the court addresses the remaining factors for establishing the need for injunctive relief:
irreparable injury, the balance of harms, and the public interest.
B. Irreparable Injury
With respect to irreparable injury, a protestor “must show that without a preliminary
injunction it will suffer irreparable harm before a decision can be rendered on the merits.” Akal
Sec., 87 Fed. Cl. at 311; accord IBM Corp. v. United States, 118 Fed. Cl. 677, 683-84 (2014).
Intelligent Waves avers, through its counsel (without a supporting affidavit or declaration), that it
will lose the opportunity to compete for the EMSS ELOG contract, expected profits from
performing the contract, and “the experience in performing this complex, global contract that
[Intelligent Waves] could apply toward its future proposals for other government work,” if it
does not receive injunctive relief because it “cannot recover these financial and experiential
losses” without such relief. Intelligent Waves Mem. 30. Mission1st also avers, through its
counsel (without a supporting affidavit or declaration), that it will “suffer irreparable harm if an
injunction is not granted, because the only other available relief—the potential for recovery of
bid preparation costs—will not compensate Mission1st for the loss of valuable business on the
Solicitation.” Mission1st Mem. 17. Neither Intelligent Waves nor Mission1st has provided the
court with the evidence necessary to carry its burden. See Gemtron Corp. v. Saint-Gobain Corp.,
572 F.3d. 1371, 1380 (Fed. Cir. 2009) (observing that “unsworn attorney argument . . . is not
evidence”).
For the sake of argument, however, the court will proceed with its analysis as if
Intelligent Waves and Mission1st had submitted evidentiary support for their claims. The Court
of Federal Claims has recognized that a lost opportunity to compete for a contract—and the
attendant inability to obtain the profits expected from the contract—can constitute an irreparable
injury. See, e.g., Akal Sec., 87 Fed. Cl. at 819; Heritage of Am., LLC v. United States, 77 Fed.
Cl. 66, 78 (2007); Overstreet Elec. Co. v. United States, 47 Fed. Cl. 728, 743 (2000).
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Absent preliminary injunctive relief, the stop-work order will be lifted on December 1,
2017, and both Intelligent Waves and Mission1st will likely have permanently lost the
opportunity to perform under the contract. No adequate remedy exists to make up for this
potential loss of business or competitive advantage; were they to be awarded, bid preparation and
protest costs would be wholly insufficient. Accordingly, both Intelligent Waves and Mission1st
will likely be irreparably injured absent injunctive relief.
C. Balance of Harms
In addition to considering whether a protestor would suffer an irreparable injury absent
injunctive relief, “[t]he court must balance the harm plaintiff would suffer without preliminary
relief against the harm that preliminary relief would inflict on defendant and defendant-
intervenor. Generally, if the balance tips in favor of defendant, a preliminary injunction is not
appropriate.” Akal Sec., 87 Fed. Cl. at 320 (citation omitted); accord Reilly’s Wholesale
Produce v. United States, 73 Fed. Cl. 705, 715 (2006). The court has already presumed, for
argument’s sake, that Intelligent Waves and Mission1st will likely suffer an irreparable injury in
the absence of preliminary injunctive relief. Intelligent Waves contends that the “DISA can
maintain the services needed through a brief extension to [. . .] during the pendency of this
protest.” Intelligent Waves Mem. 30-31. Mission1st similarly argues that the DISA can “easily
extend its current contract with [. . .].” Mission1st Mem. 18. Meanwhile, defendant explains
that issuing a temporary restraining order or a preliminary injunction would [. . .]. Def.’s Opp’n
32, ECF No. 29. Under a bridge contract, [. . .] would be [. . .]. Id. at 32-33. Indeed, unlike
Intelligent Waves and Mission1st, defendant attached a declaration from the supervisory
program manager for the DISA on the incumbent contract detailing the harm that the government
would suffer if injunctive relief were to issue. Id. at 32.
On one hand, the court assumes (for sake of argument) that the protestors will likely
suffer irreparable harm absent such relief. On the other hand, the harm to the government—as
supported by declaration—would not be insubstantial, as Intelligent Waves and Mission1st
proclaim. Because the protestors are unlikely to succeed on the merits, the balance of harms
weighs in defendant’s favor.
D. Public Interest
Finally, when “employing the extraordinary remedy of injunction,” a court “should pay
particular regard for the public consequences” of doing so. Weinberger v. Romero-Barcelo, 456
U.S. 305, 312 (1982). It is undisputed that “the public interest in honest, open, and fair
competition in the procurement process is compromised whenever an agency abuses its
discretion in evaluating a contractor’s bid.” Overstreet, 47 Fed. Cl. at 744; accord Bona Fide
Conglomerate, Inc. v. United States, 96 Fed. Cl. 233, 242 (2010) (noting the “overriding public
interest in preserving the integrity of the procurement process”). However, there is also a
“public interest in minimizing disruption [to the agency].” Heritage of Am., 77 Fed. Cl. at 78,
quoted in Akal Sec., 87 Fed. Cl. at 321; accord Aero Corp., S.A. v. United States, 38 Fed. Cl.
237, 242 (1997) (“[A] procuring agency should be able to conduct procurements without
excessive judicial infringement upon the agency’s discretion.”).
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Both Intelligent Waves and Mission1st highlight the public interest in fair procurements.
In addition, Mission1st suggests that the public interest is served by “reducing any risk to the
ultimate consumers of the Contract services [due to] ProSol’s inexperience” because “[t]hese
communications systems constitute a vital lifeline required both for mission accomplishment of
national security objectives, for the safety of their users and to disseminate critical real-time
intelligence to battlefield commanders and operators in conflict zones.” Mission1st Mem. 19.
Intelligent Waves remarks, in discussing the balance of hardships, that any “national defense and
security concerns in this case are limited” because of the DISA’s ability to extend the contract.
Intelligent Waves Mem. 30-31. Defendant highlights the public interest in avoiding undue
interference with procurements, and agrees with Mission1st that the procurement “implicates
national defense and national security interests.” Def.’s Opp’n 34 (relying on Mission1st Mem.
19). Defendant specifies that both the incumbent contract and the contract at issue in this protest
involve “mission critical operations support for Special Forces and others performing critical
military functions.” Id. at 35.
The court agrees with Mission1st and defendant that there is a significant public interest
in ensuring the safety of people and property. This interest is endangered when the federal
government lacks confidence that its contractor can provide the necessary support. The DISA
has reasonably placed its confidence in ProSol, and is understandably reticent to award a sole-
source bridge contract to a contractor that was not selected for the follow-on effort and competes
with the services at issue here. Accordingly, the public interest weighs in defendant’s favor.
IV. CONCLUSION
The court has considered all of the parties’ arguments. To the extent not discussed
herein, they are unpersuasive, without merit, or are unnecessary for resolving the matters
currently before the court.
Neither Intelligent Waves nor Mission1st are likely to succeed on the merits of their
protests. Although both protestors may be irreparably harmed absent an injunction, the balance
of harms and the public interest weigh in favor of the defendant.
Therefore, the court DENIES Intelligent Waves’s motion for a temporary restraining
order and a preliminary injunction and DENIES Mission1st’s motion for a temporary restraining
order and a preliminary injunction. The parties shall, consistent with the court’s November 27,
2017 scheduling order, file a joint status report suggesting a schedule for further proceedings no
later than Monday, December 11, 2017.
[. . .]
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
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