Sigmatech, Inc. v. United States ( 2019 )

In the United States Court of Federal Claims
No. 18-1425C
Filed: June 26, 2019
Redacted Version Issued for Publication: August 1, 20191
* * * * * * * * * * * * * * * * * ** *
SIGMATECH, INC., *
*
Protestor, *
*
v. *
Motion for Relief from Judgment;
UNITED STATES, *
RCFC 60(b)(2); Organizational
*
Conflict of Interest; Newly
Defendant, *
Discovered Evidence.
*
v. *
DIGIFLIGHT, INC., *
*
Defendant-Intervenor. *
* * * * * * * * * * * * * * * * * ** *
W. Brad English, Maynard, Cooper & Gale, P.C., Huntsville, AL, for protestor. Of
counsel were J. Andrew Watson, J. Dale Gipson, Michael W. Rich, and Katherine E.
McGuire, Maynard, Cooper & Gale, P.C., Huntsville, AL.
Joseph E. Ashman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant
Attorney General. Of counsel was Lieutenant Colonel Robert B. Nelson, Judge
Advocate, United States Army Legal Services Agency, Fort Belvoir, VA.
Christopher L. Lockwood, Wilmer & Lee, P.A., Huntsville, AL, for defendant-
intervenor. Of counsel were Jerome S. Gabig and Richard J.R. Raleigh, Jr., Wilmer &
Lee, P.A., Huntsville, AL.
1 This Order was issued under seal on June 26, 2019. The parties were asked to propose
redactions prior to public release of the June 26, 2019 Order. Defendant and intervenor
did not propose any redactions to the court’s June 26, 2109 Order. Protestor initially
proposed redactions before withdrawing all of its proposed redactions. The original June
26, 2019 Order is hereby unsealed and reissued without redaction.
ORDER
HORN, J.
On November 30, 2018, the court issued a sealed Opinion in the above-captioned
bid protest granting defendant’s and defendant-intervenor’s cross-motions for judgment
on the administrative record and directing the Clerk of the United States Court of Federal
Claims to enter judgment in favor of defendant and defendant-intervenor. Sigmatech, Inc.
v. United States, 141 Fed. Cl. 284, 338 (2018), appeal dismissed, No. 2019-1384 (Fed.
Cir. 2019). Also on November 30, 2018, the Clerk of the United States Court of Federal
Claims entered judgment in favor of defendant and defendant-intervenor. On January 2,
2019, after the parties had proposed redactions to the court’s sealed Opinion, the court
issued a redacted Opinion for publication. See id. at 284 n.1.
On December 26, 2018, protestor, Sigmatech, Inc. (Sigmatech), filed a notice of
appeal. On January 23, 2019, protestor filed a voluntary dismissal of its appeal in the
United States Court of Appeals for the Federal Circuit. On January 24, 2019, the United
States Court of Appeals for the Federal Circuit issued an Order, as a mandate, dismissing
protestor’s appeal.
While protestor’s appeal in the United States Court of Appeals for the Federal
Circuit was pending, protestor filed a “Verified Petition for Review of Agency Action” in
the United States District Court for the Northern District of Alabama on January 15, 2019.
See Sigmatech, Inc. v. U.S. Dep’t of Def., 365 F. Supp. 3d 1202, 1203 (N.D. Ala. 2019).
In protestor’s “Verified Petition for Review of Agency Action,” protestor argued that the
Department of Defense’s actions constituted a de facto debarment. Id. The United States
District Court for the Northern District of Alabama stated that the “focal point” of
Sigmatech’s petition was the award of “Task Order 18.” Id. at 1203. According to the
United States District Court for the Northern District of Alabama:
Sigmatech challenged the Agency’s award of Task Order 18 to DigiFlight
by first filing a protest with the U.S. Government Accountability Office
(“GAO”), which was ultimately unsuccessful. Then, on September 18, 2018,
Sigmatech filed a bid-protest complaint in the United States Court of Federal
Claims (“CFC”), in which it challenged the Agency’s decision to award Task
Order 18 to DigiFlight as being irrational, arbitrary and capricious, an abuse
of discretion, and otherwise not in accordance with the law. The CFC made
extensive factual findings regarding the particulars of the Agency’s decision
and ultimately held that Sigmatech was not entitled to relief. Sigmatech v.
United States, 141 Fed. Cl. 284 (2018). Sigmatech appealed the CFC’s
decision to the United States Court of Appeals for the Federal Circuit [Case
No. 2019-1384] but moved to dismiss the appeal shortly after filing the
instant petition in this Court.
Sigmatech, Inc. v. U.S. Dep’t of Def., 365 F. Supp. 3d at 1204.
2
The United States District Court for the Northern District of Alabama dismissed
protestor’s “Petition” for lack of subject-matter jurisdiction because the Northern District
of Alabama determined that protestor’s de facto debarment claim should have been
brought in the United States Court of Federal Claims.2 Id. at 1207-08. The United States
District Court for the Northern District of Alabama stated:
In the present case, there is no question that Sigmatech is challenging “a
proposed award or the award of a contract,” i.e., the follow on to Task Order
18, to DigiFlight. Even viewing this case solely as a de facto debarment
claim, it follows that Sigmatech believes it was prevented from competing
for work on other contracts and is challenging the award of those contracts
to other entities. Therefore, Sigmatech’s claim in the present case falls
within ambit of the ADRA [Administrative Dispute Resolution Act of 1996,
Pub. L. No. 104-320, 110 Stat. 3870 (1996) (codified at 28 U.S.C. §
1491(b)(1)-(4) (2012))].
Id. (emphasis in original).
On March 29, 2019, W. Brad English on behalf of protestor filed a motion in this
court stating that “Sigmatech, pursuant to Rule 60(b)(2), RCFC [Rules of the United
States Court of Federal Claims] requests that the Court give it relief from its November
30, 2018 judgment” and requested the court to “reinstate this case to its docket for further
proceedings.”3 (footnote omitted). Thereafter, defendant and defendant-intervenor filed
responses to protestor’s motion for relief from judgment, and protestor filed a reply. This
Order addresses defendant’s motion for relief from judgment under RCFC 60(b)(2)
(2018).
2In the case before this court, which resulted in the November 30, 2018 Opinion by the
court, and the subsequently, voluntarily dismissed appeal before the United States Court
of Appeals for the Federal Circuit, protestor did not assert a de facto debarment claim.
3 Jon Levin of Maynard, Cooper & Gale, PC originally was counsel of record for protestor
in the above-captioned protest. On March 29, 2019, protestor filed a motion to substitute
W. Brad English for Mr. Levin as counsel of record, both of Maynard, Cooper & Gale, PC,
which the court granted. W. Brad English previously had been designated as of counsel
for protestor throughout the litigation. Jon Levin is not designated as of counsel in the
protestor’s filings related to protestor’s March 29, 2019 motion for relief from judgment.
3
BACKGROUND4
On May 22, 2018, the Department of the Army, Army Contracting Command –
Redstone (the Army) awarded a task order to DigiFlight, Inc. (DigiFlight), 5 which was
issued as Contract No. W31P4Q-18-A-0035 and labeled as Order Number 0001 (the
DigiFlight Task Order). Sigmatech, Inc. v. United States, 141 Fed. Cl. at 289. The
DigiFlight Task Order was issued under a solicitation referred to as Task Order Request
for Quotation No. 2015P-06 (the TORFQ). Id. The performance work statement in the
TORFQ, under which the DigiFlight Task Order was issued, stated:
1.1 The Security Assistance Management Directorate (SAMD) has a
requirement for programmatic support to meet contractual obligations for
the procurement, delivery and sustainment of weapon systems entered into
via the Foreign Military Sales (FMS) process between the United States
Government (USG) and numerous foreign governments. The objective of
this Performance Work Statement (PWS) is to provide support for
implementation and sustainment of current program actions and future
programs.
1.2 The contractor shall provide programmatic services for independent
evaluation, assessments and analysis. The contractor shall provide
programmatic support necessary to monitor, coordinate and integrate FMS
[Foreign Military Sales] programs for our foreign allies. The contractor shall
supply the necessary personnel labor and travel, facilities and materials to
fulfill this objective except as identified in Paragraph 5.0., Government
Furnished Property (GFP).
Id. at 290.
On June 4, 2018, Sigmatech filed a post-award bid protest at the United States
Government Accountability Office (GAO) challenging the Army’s award to DigiFlight
under the TORFQ. Id. at 300. On July 16, 2018, Sigmatech filed a supplemental bid
protest at the GAO. Id. On September 11, 2018, the GAO denied in part and dismissed
4 The court’s November 30, 2018 Opinion set forth the facts relevant to the above-
captioned protest and are incorporated into this Order. See Sigmatech, Inc. v. United
States, 141 Fed. Cl. at 289-305. Certain facts from the court’s November 30, 2018
Opinion which are relevant to protestor’s motion for relief from judgment are repeated in
this Order. The court’s Order also will address additional factual allegations contained in
the parties’ filings related to protestor’s motion for relief from judgment.
5Prior to when the court issued its November 30, 2018 Opinion and judgment, DigiFlight
had filed an unopposed motion to intervene in the above-captioned protest, which the
court granted. DigiFlight also has submitted filings related to protestor’s March 29, 2019
motion for relief from judgment under RCFC 60(b)(2).
4
in part Sigmatech’s protest at the GAO. Id. at 301 (citing Sigmatech, Inc., B-415028.3 et
al., 2018 WL 5110874, at *1 (Comp. Gen. Sept. 11, 2018)).
On September 18, 2018, Sigmatech filed a complaint in this court challenging the
Army’s award of the DigiFlight Task Order under the TORFQ to DigiFlight. 6 Sigmatech,
Inc. v. United States, 141 Fed. Cl. at 302. On September 19, 2018, protestor filed a motion
for a protective order in the above-captioned protest, which the court granted.7 In its
complaint, Sigmatech had argued that the Army arbitrarily and capriciously evaluated
Sigmatech’s quotation and engaged in disparate treatment. According to Sigmatech’s
complaint, the Army’s source selection decision was unequal, arbitrary and capricious,
an abuse of discretion, or otherwise not in accordance with law. Id. In addition to the
impaired objectivity organizational conflict of interest (OCI) discussed below, Sigmatech
also had argued that the Army “failed to adequately consider the former Acting Director’s
[Eileen Whaley’s] access to information and setting of requirements, who is now a
KBRWyle[8] employee working on the LPTO Task Order, was a conflict of interest.” Id. At
the November 13, 2018 oral argument, counsel of record for Sigmatech at the time, Jon
Levin, specifically withdrew Sigmatech’s argument that KBRWyle’s employment of Eileen
Whaley created a conflict of interest. Id. As stated in the court’s November 30, 2018
Opinion:
During a discussion of the alleged conflict of interest involving Eileen
Whaley at the November 13, 2018 oral argument, counsel of record for
protestor stated “I will formally withdraw it.” Counsel of record for protestor
stated “I will fully admit, having reviewed the briefs, that I do not believe the
Eileen Whaley argument is particularly strong” and counsel officially
withdrew protestor’s claim involving Eileen Whaley.
Id.
In its complaint, Sigmatech also had argued that the Army failed to consider “the
DigiFlight team’s organizational conflicts of interest” involving KBRWyle’s performance of
a task order “under the Defense System Technical Area Task (‘DS TAT’) contract for
6 During a September 19, 2018 hearing in the above-captioned protest, counsel of record
for defendant represented that the Army had voluntarily agreed to stay performance of
the DigiFlight Task Order until December 14, 2018. The court’s Opinion granting
defendant’s cross-motion for judgment on the administrative record and defendant-
intervenor’s cross-motion for judgment on the administrative record was issued on
November 30, 2018.
7Protestor filed a redacted, publicly available version of its complaint on the docket in this
protest on September 28, 2019, more than two months before the court issued its
November 30, 2018 Opinion.
8 KBRWyle is one of DigiFlight’s subcontractors under the DigiFlight Task Order.
5
Patriot Technical Support at the ‘Lower Tier Project Office System Engineering
Directorate.’” Id. (capitalization in original). According to Sigmatech’s complaint:
KBRWyle (and therefore, DigiFlight) has an organizational conflict of
interest—that is, as the subcontractor to DigiFlight under the RFQ and as
the contractor under the DS TAT [Defense System Technical Area Task]
task order, KBRWyle would have to monitor and evaluate its own work
under the DS TAT task order an impermissible impaired objectivity OCI.
Id.
On October 2, 2018, Army contracting officer Ashantas Cornelius issued a
Determination and Findings regarding Sigmatech’s impaired objectivity OCI allegation
involving KBRWyle’s performance of task orders. See id. at 302-03. In the October 2,
2018 Determination and Findings, Ashantas Cornelius stated:
As the Contracting Officer responsible for the acquisition of the
Programmatic Support Services Task Order Request for Quote and
subsequent award, I have thoroughly reviewed the tasks to be performed
under the EXPRESS task order and the tasks KBRwyle performs under the
DS-TAT task orders for both LTPO [Lower Tier Project Office] and SAMD,
and have found no evidence of impaired objectivity with KBRWyle/CAS, Inc.
in performance of their duties supporting the EXPRESS Task Order and the
DTIC [Defense Technical Information Center] Task Orders. KBRwyle
working on the EXPRESS task order will not be monitoring or evaluating the
work of KBRwyle employees on the DTIC task orders. As stated above,
oversight of contractor personnel and performance is done by the
Government, through Contracting Officer Representative and Program
Managers, and not by other contractors. Furthermore, the work performed
under the EXPRESS task order is different from the work performed under
the DTIC task orders, involving different categories of services, with the
EXPRESS task order providing program support services and the DTIC task
orders focused on scientific and technical tasks.
Regarding the “oversight of contractor personnel and performance,” Ms. Cornelius stated:
The DTIC IDIQ contract has a Contracting Officer Representative (COR)
appointed by the DTIC Contracting Officer. This COR provides government
oversight of the IDIQ and is located at the DTIC Center in Ft. Belvoir, VA.
In order to provide proper government oversight and ensure contractor
performance, the individual task orders are managed by the respective
requiring organizations/activities. As a result, the DTIC Contracting Officer
appoints primary and alternate Contracting Representatives (CORs) co-
located with the contractors.
6
Id. at 331. Ashantas Cornelius also noted that “each task order is allocated a Program
Manager; whose primary duty and responsibility is to manage his/her specific program
(task order).” Id.
Sigmatech also had an opportunity to submit information to the Army prior to the
completion of the October 2, 2018 Determination and Findings. See id. at 333, 336 n.20.
In the October 2, 2018 Determination and Findings, Ashantas Cornelius stated:
Furthermore, additional last-minute information was provided by
Sigmatech regarding KBRWyle performing other DS TAT task Orders.
These tasks orders provide support to various Program Management
Offices (PMOs) to include Cargo Helicopter, Unmanned Aircraft Systems,
Fixed Wing and Future Vertical Lift. Additionally, information has been
provided indicating that DigiFlight is a subcontractor on several of
KBRWyle’s task orders. While Sigmatech has not provided sufficient
information to fully investigate these last-minute additions to its impaired
objectivity OCI allegations, because these DS TAT task orders are all
managed in the manner as previously stated, sufficient government
oversight is provided to successfully eliminating [sic] any possibility of
impaired objectivity.
Id. at 333.
In the November 30, 2018 Opinion, the court described its denial of protestor’s
motion to supplement the administrative record with an October 15, 2018 declaration
signed by Philip Roman, who protestor states is “Sigmatech’s Vice President of Security
Cooperation and Security Assistance.” Id. at 335-37. As stated in the court’s November
30, 2018 Opinion:
Protestor moved to supplement the administrative record with an October
15, 2018 declaration signed by Phillip Roman, an employee of Sigmatech,
attached to which are “Sigmatech’s Performance Work Statement and
Deliverables List, which described Sigmatech’s deliverables and the level
of oversight anticipated by the Task Order,” a “current, accurate, and
complete list of Sigmatech employees assigned to the Task Order and their
duty locations,” a “SAMD organizational matrix that demonstrates where
Sigmatech’s contractor-employees are located and to whom they report, if
anybody,” and an “article written by Major General James H. Pillsbury that,
describes the Agency’s view of the interaction between program
management offices and SAMD’s FMS duties.”
Id. at 335. The court discussed the documents submitted by protestor and concluded:
“The court, therefore, does not need protestor’s proposed additional materials to analyze
protestor’s impaired objectivity OCI and denies protestor’s motion to supplement the
administrative record. The court, however, notes that protestor’s proffered materials do
not support protestor’s argument of an impaired objectivity OCI.” Id. at 336-37.
7
In the court’s November 30, 2018 Opinion, the court rejected protestor’s argument
that “KBRWyle (and therefore, DigiFlight) has an organizational conflict of interest.” See
id. at 325-38. Based on the record before the court, the court reviewed five task orders
awarded to KBRWyle and determined that Sigmatech had failed to demonstrate that
KBRWyle’s performance under any of the five task orders created an OCI under the
DigiFlight Task Order. See id. One of the tasks orders analyzed in the October 2, 2018
Determination and Findings by the court was a task order labeled as Delivery/Order Call
No. FA807517F1389, which was issued under Contract No. FA8075-14-D-0025. See
Sigmatech, Inc. v. United States, 141 Fed. Cl. at 330. The court referred to Delivery/Order
Call No. FA807517F1389 as “the 1389 SAMD Task Order.”9 See id. The 1389 SAMD
Task Order has a “DATE OF ORDER/CALL NO.” of September 28, 2017, more than one
year before the court issued its November 30, 2018 Opinion. The court found that
KBRWyle’s performance under the 1389 SAMD Task Order did not create an implied
objectivity OCI. See Sigmatech, Inc. v. United States, 141 Fed. Cl. at 333. Moreover, the
court determined:
As the contracting officer assigned to investigate Sigmatech’s impaired
objectivity OCI, Ashantas Cornelius had considerable discretion when
determining the extent of her [Ms. Cornelius’] OCI investigation and when
determining whether a potential or actual OCI existed. See PAI Corp. v.
United States, 614 F.3d [1347,] at 1352-53 [(Fed. Cir. 2010)] (“[T]he FAR
provides a contracting officer with considerable discretion to conduct fact-
specific inquiries of acquisition proposals to identify potential conflicts and
to develop a mitigation plan in the event that a significant potential conflict
exists.” (citations omitted)). As noted above, “the FAR recognizes that the
identification of OCIs and the evaluation of mitigation proposals are fact-
specific inquiries that require the exercise of considerable discretion.”
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d [1374,] at 1382 [(Fed.
Cir. 2009)]; see also IBM Corp. v. United States, 119 Fed. Cl. 145, 161
(2014) (stating that a contracting officer has discretion when evaluating an
OCI and determining the scope of an OCI inquiry). The record before the
court indicates that Ashantas Cornelius thoroughly investigated
Sigmatech’s impaired objectivity OCI and rationally concluded that no
impaired objectivity OCI existed.
Sigmatech, Inc. v. United States, 141 Fed. Cl. at 335.
In the court’s November 30, 2018 Opinion, the court also determined that protestor
had failed to demonstrate that the Army had engaged in disparate treatment when
evaluating Sigmatech’s quotation and DigiFlight’s quotation. See id. at 311-321. The court
also determined that the Army had not acted irrationally by failing to award strengths to
Sigmatech’s quotation, as asserted by protestor. Id. Regarding protestor’s argument that
9 The 1389 SAMD Task Order was not issued under the TORFQ solicitation, under which
the DigiFlight Task Order was issued.
8
the Army’s Best Value and Fair and Reasonable Determination was arbitrary and
capricious, the court stated:
Although DigiFlight and Sigmatech both received ratings of outstanding
under the Risk Mitigation and Management factor, under the Technical
Expertise factor, DigiFlight received a rating of outstanding, which, under
the terms of the TORFQ, indicates an “exceptional level of expertise” and
that strengths “far outweigh any weaknesses.” Sigmatech only received a
rating of good under the Technical Expertise factor, which, according to the
TORFQ, indicates that Sigmatech had a “thorough level of expertise,” and
that Sigmatech’s strengths “outweigh any weaknesses.” Moreover, under
the Technical Expertise factor, DigiFlight received five strengths, while
Sigmatech only received one strength. Under the terms of the TORFQ, the
Technical Expertise factor and the Risk Mitigation factor were of equal
value, which indicates that DigiFlight’s quotation’s higher rated Technical
Expertise factor and equally rated Risk Mitigation factor were of more value
to the Army than Sigmatech’s quotation under those two factors. In addition
to noting that DigiFlight’s quotation had received a higher rating under the
Technical Expertise factor, the Army also identified multiple benefits in
DigiFlight’s quotation under the Technical Expertise factor, as discussed
above. The Army’s Best Value and Fair and Reasonable Determination
indicates that the Army determined that DigiFlight’s proposed performance
justified paying an approximately two percent price premium to DigiFlight in
order to obtain DigiFlight’s “far superior approach in both Technical
Expertise and Risk Mitigation and Management” at only a “slight
disadvantage” in price. The Army’s best value trade-off decision appears to
have been made in accordance with the evaluation criteria in the TORFQ,
which stated that the Risk Mitigation and Management factor and the
Technical Expertise factor both were of greater importance than price. The
Army documented its business judgments when choosing to pay a premium
of approximately only two percent in exchange for a quotation the Army
believed to have the strongest technical approach, as well as a risk
mitigation and management approach that also received the highest
adjectival rating under the TORFQ, which indicates that the Army rationally
exercised its discretion when conducting a best value trade-off under FAR
§ 8.405-3(c). See Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. [16,]
at 50 [(2010)] (citing E.W. Bliss Co. v. United States, 77 F.3d [445,] at 449
[Fed. Cir. 1996)])[, aff’d, 649 F.3d 1320 (Fed. Cir.), reh’g en banc denied
(Fed. Cir. 2011)]; see also Holloway & Co., PLLC v. United States, 87 Fed.
Cl. [381,] at 396 [(2009)].
Sigmatech, Inc. v. United States, 141 Fed. Cl. at 323-24. The court also found protestor’s
arguments that the Army’s Best Value and Fair and Reasonable Determination was
“flawed” to be without merit. See id. at 324-25.
9
In protestor’s March 29, 2019 motion for relief from judgment under RCFC
60(b)(2), protestor now asserts that “newly discovered evidence shows a serious
undisclosed, unanalyzed, and unremediated organizational conflict of interest stemming
from that Program.” Protestor’s RCFC 60(b)(2) motion defined the “Program” as
“DigiFlight team member’s (the ‘Team Member’) ownership and development of, and
familiarity with, a particular piece of financial analysis software (the ‘Program’).”10
Protestor asserts that, “[o]n reading the public version of the Court’s opinion,” which was
issued on January 2, 2019, “Philip Roman, Sigmatech’s Vice President of Security
Cooperation and Security Assistance, was able to identify the Program from his extensive
knowledge of SAMD Operations.” (footnote omitted). Protestor states that “Roman
believes that the Program is the Financial Analysis Support Tool, commonly known as
‘FAST,’” and that, “[b]ecause he could not understand the Program’s vital role in the
Agency’s source-selection decision, Roman investigated further.”
In the motion for relief from judgment, protestor argues that, during what protestor
refers to as Philip Roman’s “investigation,” Philip Roman met with:
1. Lee Mullis, who protestor states is a branch chief in SAMD’s Attack Systems
Division, in January 2019;
2. Daniel Hernandez, who protestor states is the “Chief of the Tactical Missile
Systems Division” in SAMD, in January 2019;
3. Brandy Ray, who protestor states is “SAMD’S [sic] Business Management Office
Chief,” in January 2019;
4. and Jim Jones, who protestor states is the chief of SAMD’s Non-Standard Missiles
Division, on March 7, 2019.11
Protestor states that Philip Roman was “surprised” to “learn[]” during his “investigation”
that there was a “charge associated with the Program [FAST],” and “learned that SAMD
has paid more than $1,000,000.00 per year for the Program [FAST].”12
10In its motion for relief from judgment, protestor chose not to use the proper names, but
refers to the 1389 SAMD Task Order as the “Program Contract,” FAST as “the Program,”
and KBRWyle as the “Team Member.”
11In the April 15, 2019 Determination and Findings, Ashantas Cornelius cites to email
exchanges between her and “the branch chiefs named in Mr. Philip Roman’s declaration,”
and states that, “[b]ased on these statements [from the branch chiefs], it appears that Mr.
Roman may have misrepresented and/or misinterpreted the conversations he held with
these SAMD executives.”
12 Defendant-intervenor submitted an April 10, 2019 declaration signed by Stephen Smith,
who states that he is KBRWyle’s program manager for the United States Army Aviation
and Missile Command (AMCOM) SAMD. In his April 10, 2019 declaration, Stephen Smith
asserts that, “[d]uring the last two years of unwarranted delays and denied protests, all
six SAMD Divisions funded FAST for development, sustainment and generation of
financial data at a cost significantly less than $1 million dollars annually.”
10
According to protestor’s RCFC 60(b)(2) motion:
As recently as January of 2019 (and likely much earlier), only one of the
(then) six SAMD divisions intended to continue using the Program [FAST].
Discontinuance would have negatively affected the Team Member
[KBRWyle] and its Program Contract [the 1389 SAMD Task Order], but
since performance began, the Program has enjoyed a renaissance at
SAMD. Several divisions have reversed course, and now intend to use the
Program. Thus, it appears likely that the Team Member has been able to
rescue its ongoing Program Contract.
Protestor also asserts:
Roman also discovered that the government had the use of the Program
through the Program Contract, which was managed through the Business
Management Office, and that seven of the Team Member’s [KBRWyle’s]
employees were assigned to support the Program Contract. These
employees include developers, analysts, and programmers. That
developers support the Program Contract is important for two reasons. First,
it shows that the Team Member does not update the Program at its own
expense. Second, it suggests that the Team Member occupies a position in
which it can recommend that SAMD request development work that will
increase its work under the Program Contract.
(emphasis in original) (internal references omitted). Attached to its motion for relief now
before this court was a March 28, 2019 declaration signed by Philip Roman, which
provides many of the alleged facts included in protestor’s RCFC 60(b)(2) motion and
which contains allegations related to FAST which were not included Philip Roman’s
October 15, 2018 declaration.
In its RCFC 60(b)(2) motion, protestor argues that it is entitled to relief from the
November 30, 2018 judgment because:
After entry of judgment, Sigmatech discovered that the Agency was already
paying for development and improvement of the Program [FAST] and that
there was an undisclosed organizational conflict of interest relating to the
Team Member’s ownership of the Program [FAST] (which had fallen out of
favor with several SAMD divisions), and its interest in driving revenues to
the Program Contract [the 1389 SAMD Task Order]. Had they been before
the Court, these issues would have clearly led to a different result. In fact,
the Team Member’s [KBRWyle’s] failure to disclose a possible conflict of
interest, as its Organizational Conflict of Interest Certification required (see
Sigmatech, 141 Fed. Cl. at 328), should have led to DigiFlight’s
disqualification from award. See Furniture by Thurston v. United States, 103
Fed. Cl. 505, 518 (2012) (Agency may not accept materially nonconforming
11
offers). Sigmatech could not have known and had no reason to suspect the
facts giving rise to these issues.
Protestor asserts that its most recent OCI allegation in its motion for relief from judgment
is supported by “hard facts” because “under the [DigiFlight] Task Order the Team Member
[KBRWyle] is the end-user of the Program [FAST], while under the Program Contract it is
its developer.” According to protestor’s RCFC 60(b)(2) motion:
Before entry of judgment, Sigmatech believed that the government could
use the Program [FAST] without a license or other contract. Instead, the
Team Member [KBRWyle] holds the Program Contract [the 1389 SAMD
Task Order], and receives approximately $1 million annually under its terms.
Because DigiFlight holds the Task Order, the Team Member is able to
recommend potential modifications to the Program [FAST], which then
drives work to the Team Member [KBRWyle] on the Program Contract [the
1389 SAMD Task Order]. Further, as an end user of the Program [FAST],
the Team Member [KBRWyle] will be able to influence government
decision-makers about the Program’s [FAST’s] performance, in effect
evaluating its own work product.
(internal reference omitted). In its current motion, protestor also alleges that it was
unreasonable for the Army to assign a strength to DigiFlight’s quotation based on
DigiFlight’s use of FAST because “the Agency pays the Team Member [KBRWyle] to
support and modify the Program [FAST] on the Program Contract [the 1389 SAMD Task
Order].”13
Defendant filed a response to protestor’s motion for relief from judgment under
RCFC 60(b)(2), in which defendant argues that the court should reject Sigmatech’s
attempt “to take a fourth bite at the apple in challenging the Army’s May 22, 2018, task
order award to DigiFlight, Inc.” Defendant asserts that protestor’s motion fails under
RCFC 60(b)(2) because the “record demonstrates that Sigmatech possessed the facts
necessary to bring its OCI allegation during the litigation and prior to judgment.”
Defendant argues that, even if protestor’s RCFC 60(b)(2) motion is “timely,” protestor’s
OCI allegation is without merit. Defendant attached to its response to protestor’s motion
for relief from judgment an April 15, 2019 Determination and Findings signed by Army
contracting officer Ashantas Cornelius, in which Ashantas Cornelius indicated she had
reviewed protestor’s new OCI allegation included in its current March 29, 2019 motion for
relief from judgment under RCFC 60(b)(2) and executed a new Determination and
Findings regarding protestor’ new OCI allegation, as is discussed below.
13 As noted above, in Sigmatech’s original September 18, 2018 complaint, Sigmatech
unpersuasively had argued that the “FAST tool is not DigiFlight’s, but a proprietary tool
owned by its teammate KBRWyle,” and that the Army unreasonably awarded a strength
to DigiFlight’s quotation based on DigiFlight’s proposed use of FAST.
12
Defendant-intervenor, the contractor which currently is performing the awarded
DigiFlight Task Order, also filed a response to plaintiff’s motion for relief from judgment,
in which defendant-intervenor asserted that the court should deny plaintiff’s motion for
relief. According to defendant-intervenor, by dismissing the appeal in the United States
Court of Appeals for the Federal Circuit “with actual knowledge of the ‘newly discovered
evidence,’ Sigmatech failed to exercise reasonable diligence and is not entitled to relief
under Rule 60(b)(2).” Moreover, defendant-intervenor contends that KBRWyle’s
performance as a subcontractor under the DigiFlight Task Order does not create an OCI.
Defendant-intervenor also asserts that events occurring after the court’s November 30,
2018 Opinion, such as the alleged decisions of a few SAMD divisions to continue using
FAST, are not newly discovered evidence under RCFC 60(b)(2), and that, even if an OCI
did arise under the DigiFlight Task Order, such an OCI would be a matter of contract
administration outside of this court’s bid protest jurisdiction. Additionally, defendant-
intervenor argues that “Sigmatech knew or should have known that FAST was associated
with a cost and a contract,” and that the court should reject the March 28, 2019 declaration
signed by Philip Roman because it contains “un-ascribed hearsay” because “Mr. Roman’s
declaration recounts discussions with various individuals he sought out.”
In an April 15, 2019 Determination and Findings attached to defendant’s response
to protestor’s current motion for relief from judgment, Ashantas Cornelius states:
In its [Sigmatech’s March 29, 2019] Motion, Sigmatech alleges, among
other things, that DigiFlight’s use of KBRWyle as a team
member/subcontractor creates impaired objectivity in which KBRWyle’s
performance on the EXPRESS SAMD Task Order would put it in a position
to promote SAMD’s use of and modifications to the Financial Analyst
Support Tool (FAST) program under a task order [the 1389 SAMD Task
Order] awarded through the Defense Technical Information Center (DTIC)
Defense Systems Technical Area Task (DS-TAT) program to Wyle
Laboratories, Inc., directly benefiting the KBRWyle[14] family of companies.
Based on Sigmatech’s allegation of an OCI involving KBRWyle/Wyle
Laboratories, lnc., I have reviewed the EXPRESS Task Order and
Performance Work Statement and the materials related to the DTlC DS-
TAT task order, including the performance work statement (PWS) and Task
Order (FA 807514D0025), as well as declarations and answers to questions
submitted by persons from SAMD and DTIC with relevant knowledge of the
two task orders award and contractor performance, and have concluded
that no OCI exists.
14 In the April 15, 2019 Determination and Findings, Ashantas Cornelius stated that
“[a]ffiliated companies KBRWyle, Inc. and Wyle Laboratories are hereinafter both referred
to as ‘KBRWyle’.” As stated in the court’s November 30, 2018 Opinion, the 1389 SAMD
Task Order was awarded to Wyle Laboratories, Inc. Sigmatech, Inc. v. United States, 141
Fed. Cl. at 329 n.17.
13
(footnote omitted). As indicated above, the 1389 SAMD Task Order was a task order
issued to KBRWyle under Contract No. FA8075-14-D-0025, which is cited by Ashantas
Cornelius, although Ms. Cornelius does not specifically reference the number of the actual
task order at issue. In the April 15, 2019 Determination and Findings, Ashantas Cornelius
states that “AMCOM SAMD provides management support services based upon services
contracts, providing foreign military customers with services; effectively assisting in the
management of foreign military sales cases and the sustainment of weapons systems.”
(internal quotation marks omitted).
In the April 15, 2019 Determination and Findings, Ashantas Cornelius described
FAST as follows:
The FAST program serves as a consolidation point of data from numerous
United States Government financial database systems. Specifically,
supporting the SAMD mission, KBRWyle employees use FAST to pull data
from the Standard Operation and Maintenance Army Research
Development System (SOMARDS), Centralized Information System for
International Logistics (CISIL), Defense Integrated Finance Systems
(DIFS), Program Budget and Accounting System (PBAS) and General Fund
Enterprise Business System (GFEBS). This data is pulled together into one
report which is provided to the Army, providing resource management
support in accordance with the EXPRESS Programmatic Task Order award.
The purpose of the FAST program is: (1) Eliminate labor-intensive FMS
financial manual data collection processes (2) Integrate multiple data
sources into a single view (3) Digitize and capture auditable source data (3)
[sic] Standardize the FMS financial analysis and reporting process (4)
Evolve with the progression of the US Army financial database systems.
Ms. Cornelius states in the April 15, 2019 Determination and Findings that a KBRWyle
employee developed FAST approximately fifteen years ago.
According to the April 15, 2019 Determination and Findings:
SAMD acquires the services supporting the FAST program through the use
of the Defense Technical Information (DTIC) Defense Systems Technical
Area Task (DS-TAT) Indefinite Delivery Indefinite Quantity (IDIQ) contract
managed by Defense Technical Information Center (DTIC) personnel
located at Ft. Belvoir, VA. A task order for technical support for SAMD was
awarded on September 28, 2017. The task order [the 1389 SAMD Task
Order] was awarded to Wyle Laboratories, Inc., a part of KBRWyle/CAS,
Inc. located in Huntsville, Alabama. In addition to providing support to the
SAMD Program Office, this task order [the 1389 SAMD Task Order] is used
to support other organizations such as the Lower Tier Project Office (LTPO)
and the Missile Defense Agency Foreign Liaison Officers (MDA, FLO).
14
Under this DS-TAT task order [the 1389 SAMD Task Order], SAMD
acquires the product - the report generated by FAST - and the data analysis
services for the financial assistance provided by the programmers. There
were no contracts used in the research and development or material costs
of the FAST program. The task order supporting the FAST programs is for
labor only, supporting the necessary data updates, and the report and data
analysis. In previous years, the services for the FAST program have been
acquiring [sic] using numerous contract vehicles. Due to numerous delays
and protests within the past two years, the FAST program has been funded
through these numerous contract vehicles for the six (6) divisions within the
SAMD Program Office.
In the April 15, 2019 Determination and Findings, Ashantas Cornelius also discussed how
KBRWyle’s 1389 SAMD Task Order is managed, stating:
The DTIC task order [the 1389 SAMD Task Order] is managed by the SAMD
Business Management Office (BMO) and a Contracting Officer
Representative (COR) has been appointed, ensuring extensive government
oversight. The BMO has provided funding; incorporating a training program
for government and contractor personnel working within the SAMD Program
Office. Contractor Personnel have been trained on the FAST Program;
supporting their daily duties and responsibilities in accordance with the
applicable PWS for their contract/task order. The funding for the FAST
program services is provided by the Division/Branches with the SAMD
Program Office. Each division/branch determines independently if FAST is
required for their section and provides funding. At its height of use, all six
divisions of the SAMD Program Office used the FAST program. Due to ever-
changing division requirements and budgetary constraints, currently two of
the six divisions (PATRIOT and Tactical Missile) and one branch within the
SAMD Program Office use FAST. Any changes to the program are made at
the Army’s request. Changes are based upon the mission requirement and
needs of the organization. For example, there have been twenty-seven (27)
customized reports added to the FAST tool by the request of SAMD.
Moreover, the FAST program is not used exclusively by the SAMD Program
Office, this is a widely known program throughout the Department of
Defense and used by other Program/Project Offices such as PEO [Program
Executive Office] Aviation.
Regarding the utilization of FAST under the 1389 SAMD Task Order, Ashantas
Cornelius stated that the “DTIC DS TAT technical task order (FA80751D0025) [the 1389
SAMD Task Order] provides service support for the FAST program in accordance with
ten tasks as specified in the Performance Work Statement (PWS). The FAST program is
not listed specifically in the PWS however; its major performance requirements are
contained in PWS paragraph 3.10.2 . . . .” According to Ashantas Cornelius’ April 15, 2019
Determination and Findings, KBRWyle provides two full-time employees to support the
requirements involving FAST under the KBRWyle 1389 SAMD Task Order.
15
In the April 15, 2019 Determination and Findings, Ashantas Cornelius further
discussed the DigiFlight Task Order, stating:
The EXPRESS Programmatic Task Order (W31P4Q-18-A-0035-0001)
awarded on 23 May 2018 to DigiFlight, Inc. [the DigiFlight Task Order] for
which KBRWyle serves as a team member, provides programmatic services
supporting the SAMD Mission. As a team member, KBRWyle provides
contractor supporting two sections of the programmatic PWS: (1)
International Program Support (2.6) and Security Assistance Program
Support (2.7). In providing this support, KBRWyle provides one contracted
employee supporting the International Program Support and seventeen (17)
contracted employees supporting the Security Assistance Program
Support.
Ashantas Cornelius asserted that the “contracted employees supporting task [sic]
provided in support of the EXPRESS task order [the DigiFlight Task Order] do not have
interacting tasks with the contracted employees under the DTIC DS TAT task order [the
1389 SAMD Task Order].” According to Ashantas Cornelius:
In addition, the Government provides extensive government oversight,
through the use of the COR and the Division/Branch Chiefs. The
Divisions/Branches determine at their discretion if the use of the FAST
program is necessary and affordable in support of their missions. In fact,
several branch chiefs have decided not to use FAST for their branch, while
others have considered ceasing to use the program but decided to continue
use. If required, the Division/Branch will provide the funding required for the
support of the program for their section. Additionally, the division/branch
chiefs determine what information is needed and/or required based upon
their mission requirements. The appropriate Government supervisors within
the divisions/branches provide additional oversight and recommendations
to the data required and requested with approval through the
Division/Branch chiefs.
(emphasis in original) (footnote omitted).
In the April 15, 2019 Determination and Findings, Ashantas Cornelius asserted
that, “[w]hile KBRWyle can make recommendations as to the use of and changes to
FAST, it is the Government that determines if it will use the services provided by FAST
and what changes it would like to see to the program to better support the mission.”
Ashantas Cornelius stated:
Based on all the foregoing, I conclude that KBRwyle, Inc., performance of
the DTIC DS-TAT task orders does not create an impaired objectivity
organizational conflict of interest that would impact its ability to provide
impartial advice to the Government or otherwise jeopardize contractor
16
performance. The functions and oversight of the DTIC Task Orders and the
EXPRESS Task Order are proper in all respects.
After reviewing the October 2, 2018 Determination and Findings and the April 15,
2019 Determination and Findings, the court recognized that the October 2, 2018
Determination and Findings and the April 15, 2019 Determination and Findings each
analyzed the 1389 SAMD Task Order. The court, however, noticed some unexplained,
non-substantive differences between the task order attached to the October 2, 2018
Determination and Findings and the task order attached to the April 15, 2019
Determination and Findings. On May 17, 2019, the court issued an Order directing the
parties to submit simultaneous filings to the court addressing the relationship between the
task order analyzed by Ashantas Cornelius in her October 2, 2018 Determination and
Findings, the task order analyzed by Ashantas Cornelius in her April 15, 2019
Determination and Findings, and the DT-16-1389 performance work statement attached
to protestor’s complaint.
In response to the court’s May 17, 2019 Order, protestor states that there were
“clearly” differences between the task order attached to the October 2, 2018
Determination and Findings and the task order attached to the April 15, 2019
Determination and Findings. Protestor states that “[s]ubstantively, however, the
Performance Work Statement in Section C of the October 2018 Document appears to be
the same as the PWS in the April 2019 document.” Protestor also states the “PWS from
the October 2018 and April 2019 Documents appear to be substantively identical to the
document labeled ‘DT 16-1389’ and included in the Appendix of Sigmatech’s original
complaint in this protest.”
In defendant’s filing in response to the court’s May 17, 2019 Order, defendant
states that the “difference between the two documents is that the task/delivery order
attached to the October 2, 2018 D&F [Determination and Findings] is the originally signed
version of that order, and the task/delivery order attached to the April 15, 2019 D&F is the
conformed version of the order that incorporates subsequent modifications. They are the
same task/delivery order [the 1389 SAMD Task Order].” (internal references omitted).
Defendant asserts that the DT-16-1389 performance work statement is the performance
work statement included in the 1389 SAMD Task Order. Defendant also submitted a May
21, 2019 declaration signed by Ashantas Cornelius, in which Ms. Cornelius states that
the formatting of the task order attached to the October 2, 2018 Determination and
Findings and the task order attached to the April 15, 2019 Determination and Findings
differ because of a change in “contract writing system” that occurred in January 2019.
Ashantas Cornelius also states that the task order attached to the October 2, 2018
Determination and Findings and the task order attached to the April 15, 2019
Determination and Findings are the “same task order.” According to Ms. Cornelius, the
DT-16-1389 performance work statement is the performance work statement within the
task order attached to both Determination and Findings, which is the 1389 SAMD Task
Order. In the May 21, 2019 declaration, Ashantas Cornelius further states:
17
The number on the PWS (Page 104 of “ECF 1-1”), DT 16-1389, is a DTIC
internal tracking number used to reference the task order which was
awarded to Wyle Laboratories as FA807517F1389 [the SAMD Task Order].
This PWS number references the year (2016) in which the requirement was
received as an acquisition requirement by the DTIC Customer Support
Office and the assignment number (1389). This DTIC assignment number
becomes the last four numbers of the task order number entered in Block 2
of the task order.
In defendant-intervenor’s submission in response to the court’s May 17, 2019
Order, defendant-intervenor states that the task order analyzed in the October 2, 2018
Determination and Findings is the same task order analyzed in the April 15, 2019
Determination and Findings, and that the DT-16-1389 performance work statement is the
performance work statement within the task order attached to the two Determination and
Findings. Defendant-intervenor states that there were some “minor differences,” such as
formatting, between the task order attached to the October 2, 2018 Determination and
Findings and the task order attached to the April 15, 2019 Determination and Findings.
As noted above, the task order attached to the October 2, 2019 Determination and
Findings and the April 15, 2019 Determination and Findings is KBRWyle’s 1389 SAMD
Task Order.
DISCUSSION
In the above-captioned protest, defendant argues that protestor’s motion for relief
under RCFC 60(b)(2) is “untimely” because:
These two facts – that DigiFlight proposed the KBRWyle-furnished FAST
for performance of the TORFQ, and that KBRWyle held a separate task
order with the Army for the maintenance of FAST, forms the basis of
Sigmatech’s new OCI allegations. See Pl.’s Mot. at 9 (“In other words, under
the Task Order the Team Member [i.e. KBRWyle] is the end-user of the
Program, while under the Program Contract it is the developer.”). The
record is clear that Sigmatech possessed all of the information necessary
to assert this impaired objectivity OCI with its protest and prior to judgment.
(emphasis, capitalization, and alterations in original). Defendant further asserts:
The fundamental flaw in Sigmatech’s motion is the reliance on when one of
Sigmatech’s corporate officers allegedly learned that: DigiFlight had
proposed the FAST tool as provided by KBRWyle; the Army had evaluated
DigiFlight’s proposal positively based upon that attribute; and that KBRWyle
held a separate task order with the Army for the maintenance of FAST. It is
Sigmatech the corporate entity that is the party in this action – not its
individual officers. Thus, the issue is when did Sigmatech – and not Mr.
Roman – obtain the facts upon which its present OCI allegation is based.
The record is clear that Sigmatech possessed all of the facts necessary to
18
have included the present OCI allegation in its briefing during the litigation
and prior to judgment.
It is well established that a plaintiff is charged with the knowledge of its
attorneys. Sigmatech, through its attorneys, clearly possessed actual
knowledge that DigiFlight had proposed FAST as provided by KBRWyle,
that KBRWyle was the developer of FAST, the Army had rated that proposal
attribute positively, and that KBRWyle had maintained a separate Army task
order by which it maintained FAST.
(citations omitted).
Defendant further asserts that protestor, in the complaint, had argued that
DigiFlight received a strength for its proposed use of FAST, which, in the complaint,
protestor had asserted was owned by KBRWyle. Defendant argues that protestor
attached the performance work statement for the 1389 SAMD Task Order to its complaint,
and that protestor argued in the complaint that KBRWyle was performing that tasks in the
performance work statement. According to defendant:
[T]he record demonstrates that Sigmatech had in its actual possession all
of the information necessary to have brought its OCI claim during the
litigation without having to make any additional inquiries at all. Sigmatech
knew during the litigation that DigiFlight had proposed FAST as provided by
KBRWyle, KBRWyle developed FAST, the Army had assessed DigiFlight’s
proposal strength based upon that attribute, and the [sic] KBRWyle
performed maintenance of FAST on a separate Army task order. There was
no impediment at all preventing Sigmatech from bringing the present OCI
allegation during litigation and prior to judgment, and its Rule 60 motion
should be denied on that basis.
Defendant-intervenor also notes that protestor attached a copy of the DT-16-1389
performance work statement for the 1389 SAMD Task Order to its complaint. Defendant-
intervenor, therefore, argues that protestor was aware of the 1389 SAMD Task Order
when it filed its complaint. Defendant-intervenor asserts that, “[g]iven that Sigmatech
expressly understood FAST to be a ‘proprietary tool’ owned by KBRwyle, Sigmatech
could not have reasonably believed that this ‘proprietary tool’ was free.”
Protestor, however, argues that the evidence upon which it attempts to rely to
support its motion for relief from judgment under RCFC 60(b)(2) is newly discovered
evidence. Protestor argues that, “[a]t the time the judgment was entered, Sigmatech did
not know and, based on its long history on this effort had no reason to even suspect, that
the Team Member [KBRWyle] held a lucrative contract to develop the Program, creating
an organizational conflict of interest for DigiFlight.” Protestor also argues that “[b]oth
DigiFlight and the Agency point out that, although Sigmatech was ignorant of the evidence
and facts underlying its [protestor’s RCFC 60(b)(2)] Motion, its attorneys were not.”
According to protestor:
19
Sigmatech’s attorneys obtained the information the United States and
DigiFlight seek to impute to Sigmatech subject to a protective order[15]
specifically forbidding disclosure of that information to Sigmatech. Though,
in an ordinary case, Sigmatech’s attorneys would have had a duty to
disclose this information to Sigmatech, the Court’s protective order
reversed that duty, interposing a wall of confidentiality between Sigmatech
and its counsel. Charging Sigmatech with knowledge the Court specifically
forbade its attorneys from disclosing would turn the logic of imputation on
its head and render protective orders superfluous.
(internal references omitted). Protestor contends that, “while the Agency and DigiFlight
may ignore the effect of the Court’s protective order, Sigmatech’s counsel did not. As
Roman’s declaration made clear, Sigmatech was not privy to materials the protective
order covered.” (emphasis in original). There is no evidence before the court indicating
that counsel of record for defendant or counsel of record for defendant-intervenor
“ignore[d]” or violated the requirements of the court’s September 19, 2018 Protective
Order.
Protestor also argues that “Sigmatech could not have divined that task order DT-
16-1389 was a contract for FAST through reasonable diligence” because the 1389 SAMD
Task Order does not explicitly mention FAST and protestor was not able “to divine its
existence from this muddle” in the DT-16-1389 performance work statement within the
1389 SAMD Task order. Protestor contends that “Sigmatech did not know the Agency
was paying to use FAST, despite knowing that it was proprietary to KBRWyle.
Sigmatech’s understanding was reasonable, and the Court should not charge it with prior
knowledge of the Program Contract [the 1389 SAMD Task Order].” Protestor argues that
the performance work statement in the 1389 SAMD Task Order “does not serve to put a
reasonable reader on notice that KBRWyle is developing FAST” under the 1389 SAMD
Task Order.
The rule at RCFC 60(b)(2) provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons . . . newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under RCFC
15 Protective orders often are issued in bid protests to solicitations in order to protect
sensitive, confidential, and propriety information, as well as procurement evaluations,
especially in the event that a protest is successful and the protested contract or task order
is resolicited.
20
59(b).[16]
RCFC 60(b)(2). An RCFC 60(b)(2) motion for relief from judgment must be filed “within a
reasonable time” and must be filed within one year after the entry of judgment. RCFC
60(c). A motion for relief from judgment under RCFC 60(b)(2) “is ‘one for extraordinary
relief entrusted to the discretion of the Court . . . which may be granted only in
extraordinary circumstances.’” See TDM Am., LLC v. United States, 100 Fed. Cl. 485,
490 (2011) (omission in original) (quoting Sioux Tribe of Indians v. United States, 14 Cl.
Ct. 94, 101 (1987), aff’d, 862 F.2d 275 (Fed. Cir. 1988), cert. denied, 490 U.S. 1075
(1989)); see also Wagstaff v. United States, 118 Fed. Cl. 172, 175 (citation omitted), aff’d,
595 F. App’x 975 (Fed. Cir. 2014). “The grant or denial of a motion for relief from judgment
is discretionary.” Yachts Am., Inc. v. United States, 779 F.2d 656, 662 (Fed. Cir. 1985).
Judges of this court have stated that to be entitled to relief under RCFC 60(b)(2):
[A] party must show “(1) that the evidence was actually ‘newly discovered,’
that is, it must have been discovered subsequent to trial; (2) that the movant
exercised due diligence; and (3) that the evidence is material, not merely
impeaching or cumulative, and that a new trial would probably produce a
different result.”
TDM Am., LLC v. United States, 100 Fed. Cl. at 490 (quoting Yachts Am., Inc. v. United
States, 8 Cl. Ct. 278, 281 (quoting Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1353
(8th Cir. 1984)), aff’d, 779 F.2d 656 (Fed. Cir. 1985), cert. denied, 479 U.S. 832 (1986));
see also Wagstaff v. United States, 118 Fed. Cl. at 176 (citations omitted). Judges of this
court also have stated: “To warrant relief under Rule 60(b)(2), the moving party ‘must
show that the newly discovered evidence, if introduced at trial, clearly would have
produced a different result if presented before the original judgment.’” Madison Servs.,
Inc. v. United States, 94 Fed. Cl. 501, 507 (2010) (quoting Venture Indus. Corp. v. Autoliv
ASP, Inc., 457 F.3d 1322, 1328 (Fed. Cir. 2006)); see also Spengler v. United States,
128 Fed. Cl. 338, 344 (2016) (quoting Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d
at 1328 (quoting Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998))), aff’d, 688
F. App’x 917 (Fed. Cir. 2017); see also Q Integrated Cos., LLC v. United States, 131 Fed.
Cl. 125, 131 (quoting Madison Servs., Inc. v. United States, 94 Fed. Cl. at 507), appeal
dismissed, No. 17-2090, 2017 WL 5633406 (Fed. Cir. July 24, 2017); Wagstaff v. United
States, 118 Fed. Cl. at 176 (quoting Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d
at 1328).
Case law in this court indicates that, under RCFC 60(b)(2), newly discovered
evidence “is ‘limited to “‘“evidence of facts which existed at the time of decision and of
which the aggrieved party was excusably ignorant.”’”’” Q Integrated Cos., LLC v. United
States, 131 Fed. Cl. at 131 (quoting TDM Am., LLC v. United States, 100 Fed. Cl. at 490
16A motion for a new trial or for reconsideration under RCFC 59(a)(1)(A)-(B) (2018) must
be filed no later than twenty-eight days after judgment has been entered. RCFC 59(b)
(2018).
21
(quoting Yachts Am., Inc. v. United States, 8 Cl. Ct. at 281)); see also Wagstaff v. United
States, 118 Fed. Cl. at 176 (citations omitted); TDM Am., LLC v. United States, 100 Fed.
Cl. at 490 (citations omitted). “When a movant seeks to reopen a judgment based on
newly discovered evidence under Rule 60(b)(2), the movant cannot have possessed that
evidence prior to trial.” Kawa v. United States, No. 06-448C, 2009 WL 1704462, at *1
(Fed. Cl. June 12, 2009) (citing JGB Enters., Inc. v. United States, 71 Fed. Cl. 468, 473
(2006)); see also Spengler v. United States, 128 Fed. Cl. at 344 (“Spengler knew of the
existence of the documents he would now have this Court consider, as well as their
relevance, by May 21, 2016. As noted above, any motion for reconsideration under RCFC
59 was due by August 18, 2016. Thus Exhibit B is not ‘newly discovered evidence that,
with reasonable diligence, could not have been discovered in time’ to file a motion under
RCFC 59 as required by RCFC 60(b)(2).” (quoting RCFC 60(b)(2))); JGB Enters., Inc. v.
United States, 71 Fed. Cl. at 473 (“To the extent plaintiff still seeks relief under RCFC
60(b)(2), plaintiff is not entitled to such relief because the MIPR [Military Interdepartmental
Purchase Request] Chronology Sheet was readily available to plaintiff in advance of trial,
and plaintiff points to no other newly discovered evidence.”).
As discussed above, protestor’s motion for relief from judgment indicates that the
alleged newly discovered evidence is that KBRWyle is providing services related to FAST
to the Army under the “Program Contract,” which, as stated above, is the KBRWyle 1389
SAMD Task Order, and that KBRWyle is collecting fees from the Army based on
KBRWyle’s provision of FAST to the Army. In protestor’s original complaint in the above-
captioned protest, however, protestor previously included the following statement,
although with respect to its challenge to the evaluation of Sigmatech’s offer:
DigiFlight received a strength for its “superior understanding” of multiple
financial databases to support its proprietary [Financial Analysis Support
Tool] (“FAST”) tool.” The FAST tool is not DigiFlight’s, but a proprietary tool
owned by its teammate KBRWyle. But the Agency completely overlooked
that Sigmatech also uses FAST and also has a deep understanding of the
Agency’s financial management needs.
(emphasis and alterations in original). Protestor’s complaint also argued that the Army
improperly evaluated DigiFlight’s experience with FAST. The record before the court,
therefore, indicates that, as of the time the original protest complaint was filed, protestor
was aware that KBRWyle owned FAST, and that DigiFlight uses FAST and had proposed
to use FAST in performing the tasks listed in the TORFQ, which was the solicitation under
which the DigiFlight Task Order was issued.
Regarding the alleged impaired objectivity OCI involving KBRWyle, in its
complaint, protestor also asserted in its complaint:
KBRWyle is also the prime contractor under a separate DS TAT task order
[the 1389 SAMD Task Order] to provide programmatic support to SAMD
itself. (Appx. p. A102.) KBRWyle’s work on SAMD includes some of the
tasks it would perform under the TORFQ [under which the DigiFlight Task
22
Order was issued].” (Appx. pp. A105-106.) And this DS TAT task order
requires KBRWyle to evaluate and oversee aspects of its own work on the
LTP Patriot Missile program. (Appx. p. A103.)
The references to pages in the “Appx.” in protestor’s complaint refer to an appendix that
was attached to protestor’s complaint. Beginning at page 102 of protestor’s appendix was
a performance work statement for Defense Systems Technical Area Task for SAMD,
which was labeled DT-16-1389. According to the May 21, 2019 declaration signed by
Army contracting officer Ashantas Cornelius, the DT-16-1389 performance work
statement was included in a separate solicitation under which the 1389 SAMD Task Order
was issued to KBRWyle. Ashantas Cornelius states in the May 21, 2019 declaration that
the DT-16-1389 performance work statement was “included with the [separate]
solicitation and serves as the basis for the offerors’ proposals. The [DT-16-1389] PWS is
incorporated into the subsequent award of the task order, where it is serves as the guide
for the contractor’s performance of the task order.” In the 1389 SAMD Task Order
KBRWyle is performing, the performance work statement is labeled DT-16-1389.
Protestor, defendant, and defendant-intervenor all have indicated the DT-16-1389
performance work statement is included as the performance work statement within
KBRWyle’s 1389 SAMD Task Order. Thus, at the time protestor filed its complaint,
protestor had in its possession the performance work statement within KBRWyle’s 1389
SAMD Task Order, which is the task order that forms a basis of protestor’s RCFC 60(b)(2)
motion. Protestor’s complaint also demonstrates that protestor’s counsel knew that
KBRWyle was performing the tasks listed in the performance work statement labeled DT-
16-1389 under a separate task order as of the time the complaint was filed in the above-
captioned protest. Protestor’s complaint specifically cited to the DT-16-1389 performance
work statement and asserted “KBRWyle is also the prime contractor under a separate DS
TAT task order to provide programmatic support to SAMD itself.”
Moreover, in its complaint, protestor cited to the DT-16-1389 performance work
statement and argued that there was an OCI because KBRWyle “possesses a separate
DS TAT task order to provide programmatic support to SAMD. Many of KBRWyle’s duties
under that task order appear to be substantively identical to the TORFQ requirements.”
In the October 2, 2018 Determination and Findings, Ashantas Cornelius had analyzed
KBRWyle’s performance of the 1389 SAMD Task Order and KBRWyle’s position as a
subcontractor under the DigiFlight Task Order and determined that an impaired objectivity
OCI did not exist.17 See Sigmatech, Inc. v. United States, 141 Fed. Cl. at 303-04. The
17 As noted in Ashantas Cornelius’ October 2, 2018 Determination and Findings:
In its protest, Sigmatech alleges, among other things, that DigiFlight, Inc.
entered into a teaming/subcontractor agreement with KBRWyle/CAS Inc.
(KBRWyle), creating impaired objectivity in which KBRWyle, in performing
the EXPESS Task Order [the DigiFlight Task Order], would provide
oversight and/or approval over its own work performance and deliverables
performed under other task orders awarded through the Defense Technical
23
court also analyzed the 1389 SAMD Task Order, in addition to four other task orders
KBRWyle was performing, and the DigiFlight Task Order and concluded that the Army
had not acted arbitrarily and capriciously and determined that an impaired objectivity OCI
did not exist. See id. at 330-37. Furthermore, a copy of the 1389 SAMD Task Order was
attached to the October 2, 2018 Determination and Findings and included in the
administrative record in this protest. The record which was before the court prior to the
issuance of the November 30, 2018 Opinion, therefore, demonstrates that protestor’s
counsel had the DT-16-1389 performance work statement and the 1389 SAMD Task
Order on which it bases its current RCFC 60(b)(2) motion well before the court’s issuance
of its November 30, 2018 Opinion. Protestor’s counsel also would appear to have
understood the relevance of the 1389 SAMD Task Order prior to the court’s decision and
judgment. Protestor’s impaired objectivity OCI assertions in the complaint and
subsequent filings submitted by protestor’s counsel alleged that KBRWyle’s performance
of the 1389 SAMD Task Order and KBRWyle’s role as a subcontractor under the
DigiFlight Task Order created an impaired objectivity OCI. Protestor’s OCI arguments
involving KBRWyle’s performance of the 1389 SAMD Task Order were general, high-
level, and without specific detail, and did not precisely assert that KBRWyle was providing
FAST under the 1389 SAMD Task order. Protestor’s impaired objectivity OCI argument
involving the 1389 SAMD Task Order, however, was analyzed by contracting officer
Ashantas Cornelius, fully briefed by the parties, addressed at oral argument, and
analyzed by the court prior to the issuance of the November 30, 2018 Opinion and
judgment.
Protestor’s argument that KBRWyle was providing services related to FAST under
the 1389 SAMD Task Order is not “newly discovered evidence” because protestor’s
counsel knew, prior to judgment, that KBRWyle was performing the 1389 SAMD Task
Order and protestor’s counsel possessed a copy of the performance work statement in
the 1389 SAMD Task Order, which also was part of the sealed administrative record
before the court. Protestor’s argument involving FAST is based on the same evidence as
its previously asserted impaired objectivity OCI, i.e. KBRWyle’s performance of the 1389
SAMD Task Order and performance as a subcontractor under the DigiFlight Task Order.
Moreover, the court is not persuaded by protestor’s argument that “Sigmatech
could not have divined that task order DT-16-1389 was a contract for FAST through
reasonable diligence.” As stated in Ashantas Cornelius’ April 15, 2019 Determination and
Findings, under the 1389 SAMD Task Order, KBRWyle “provides service support for the
FAST program in accordance with ten tasks as specified in the Performance Work
Statement (PWS),” which protestor had when it filed the complaint in this protest, with the
“major performance requirements” being listed in “PWS paragraph 3.10.2.” In DigiFlight’s
quotation in response to the TORFQ, DigiFlight stated that “Team-developed FAST
automatically retrieves and merges critical FMS financial records from legacy databases,
improves accuracy and efficiency, and reduces a 300-hour data retrieval process to
minutes.” (emphasis in original). In the performance work statement in the 1389 SAMD
Information Center (DTIC) Defense Systems Technical Area Task (DS-
TAT) program.
24
Task Order, paragraph 3.10.2 states that the contractor shall:
Assist with the development of FMS Financial Management pricing
processes in support of Non-Recurring cost assessments, Offsets, Travel,
Royalty fees & payments, FMS case fund flow and FMS Admin Fund flow.
This requires USG approved access to USG financial database systems to
include utilizing Automated Retrieval Transaction Information System
(ARTIS), Automated Time Attendance and Production (ATAAPS),
Centralized Information System for International Logistics (CISIL),
Commodity Command Standard System (CCSS), Defense Integrated
Finance System (DIFS), Defense Security Assistance Management System
(DSAMS), Defense Travel System (DTS), Electronic Document Access
(EDA), Federal Logistics Record (FEDLOG), General Fund Enterprise
Business System (GFEBS), Major Item Pricing (IMPART) System, Logistics
Modernization Program (LMP), Military Standard Billing Systems
(MILSBILLS), MILSBILLS Inquiry System (MILSINQ), Mechanization of
Contract Administration Services (MOCAS), Program Budget and
Accounting System (PBAS), Property Book Unit Supply Enhanced
(PBUSE), Standard Operation and Maintenance Army Research
Development System (SOMARDS), Security Cooperation Information
Portal (SCIP) or other automated databases and systems (Deliverable 4.12:
FMS Pricing Assessment).
Paragraph 3.1.3.9 of the performance work statement in the KBRWyle 1389 SAMD Task
Order, which was attached to protestor’s complaint, states that the contractor shall:
Develop a software application to facilitate financial data collection from
USG databases such as Standard Operation and Maintenance Army
Research System (SOMARDS), Department of Insurance and Financial
Services (DIFS), Centralized Integrated System-International Logistics
(CISIL), Planning, Budgeting, and Accounting System (PBAS), and General
Fund Enterprise Business System (GFEBS) to augment the annual budget
submissions (Deliverable 4.10: Software Development Report).
In DigiFlight’s quotation in response to the TORFQ, DigiFlight discussed FAST at
length. See Sigmatech, Inc. v. United States, 141 Fed. Cl. at 318. The attorneys
representing Sigmatech had DigiFlight’s entire quotation submitted in response to the
TORFQ, which was included without redaction as tab 9 in the sealed administrative
record. DigiFlight’s quotation stated:
Team DigiFlight uses FAST to collect financial transactions (commitments,
obligations, and disbursements), automate financial analysis, generate
standardized SAMD financial reports, and provide inputs and
recommendations based on the analysis and reports. Our Team
developed FAST, maintains the underlying code, and recommends
FAST growth plans for future SAMD Division and Branch support. As
25
shown in Figure 2.1, we maintain and update 27 standardized FMS
financial reports by accessing access and extract financial data from
SOMARDS, PBAS, CISIL, DIFS, and GFEBS.
(emphasis in original). DigiFlight’s quotation stated that Team DigiFlight developed FAST,
which creates financial reports by “extract[ing]” data from: (1) SOMARDS; (2) PBAS; (3)
CISIL; (4) DIFS; and (5) GFEBS. The KBRWyle 1389 SAMD Task Order performance
work statement required KBRWyle to develop a software that could collect financial data
from: (1) SOMARDS; (2) PBAS; (3) CISIL; (4) DIFS; and (5) GFEBS. The software
identified in the performance work statement of the KBRWyle 1389 SAMD Task Order
corresponds with the description of FAST in DigiFlight’s quotation. Had protestor’s
attorneys compared the performance work statement requirements in KBRWyle’s 1389
SAMD Task Order with the description of FAST in DigiFlight’s quotation, the similarities
would have been apparent to protestor’s attorneys. Protestor’s RCFC 60(b)(2) motion
fails because protestor’s argument involving FAST is not “newly discovered evidence that,
with reasonable diligence, could not have been discovered” because reasonable
diligence and examination of the materials in protestor’s attorneys’ possession and in the
record would have led protestor to recognize the overlap between the 1389 SAMD Task
Order and FAST. See RCFC 60(b)(2). If concerned, during the litigation of the protest,
protestor’s attorneys could have alleged that KBRWyle was providing FAST under the
1389 SAMD Task Order resulting in an alleged OCI.
Protestor’s counsel also argues that the court should not “impute” the knowledge
protestor’s attorneys obtained during the course of litigation to their client, Sigmatech,
because of the court’s September 19, 2018 Protective Order.18 In essence, protestor is
asking the court, because of the Protective Order, to overlook the knowledge in the
possession of protestor’s attorneys19 who litigated the protest leading to the court’s
November 30, 2018 Opinion, and to disregard that protestor’s counsel had documents in
their possession, including the 1389 SAMD Task Order, and could have or should have
recognized a connection between FAST and the performance work statement in the 1389
SAMD Task Order. If accepted, protestor’s attorneys’ unpersuasive argument potentially
would leave a bid protest litigated with a protective order subject to a RCFC 60(b)(2)
motion for relief from judgment based on “newly discovered evidence” pending a client’s
review of the court’s public decision, regardless of whether an argument could or should
have been made by the attorneys who extensively litigated the protest on the client’s
behalf. Counsel for protestor could have inquired to Sigmatech employees as to programs
proposed by Sigmatech in its quotation without violating the Protective Order, which
18 On September 18, 2018, protestor filed a motion for a protective order in the above-
captioned protest, in which protestor argued that the “administrative record in this
procurement protest case contains (or will contain) proprietary and confidential pricing
information, source selection information, sensitive plans or specifications, and/or other
competition-sensitive procurement information.”
19Sigmatech is represented by attorneys who are listed the law firm’s website as part of
the firm’s government contracts group.
26
included the FAST program. Counsel of record for protestor could have discussed the
allegations in the complaint with Sigmatech in a manner as to not violate the Protective
Order in order to gather the relevant information as necessary to litigate the protest.
Moreover, some of the documents, such as protestor’s redacted complaint and the
DT-16-1389 performance work statement, discussed above, which were in protestor’s
attorneys’ possession, also were publicly available on the docket in the above-captioned
protest. A redacted version of protestor’s complaint was voluntarily filed by protestor’s
counsel on the court’s docket on September 28, 2018, more than two months before the
court issued its November 30, 2018 Opinion. In the redacted complaint, neither defendant
nor protestor chose to redact the following assertion, which remained unredacted:
KBRWyle is also the prime contractor under a separate DS TAT task order
to provide programmatic support to SAMD itself. (Appx. p. A102.)
KBRWyle’s work on SAMD includes some of the tasks it would perform
under the TORFQ. (Appx. pp. A105-106.) And this DS TAT task order
requires KBRWyle to evaluate and oversee aspects of its own work on the
TP Patriot Missile program. (Appx. p. A103.)
The citations to the appendix in protestor’s redacted complaint refer to the DT-16-1389
performance work statement, which was incorporated into the 1389 SAMD Task Order
and served as the performance work statement within the 1389 SAMD Task Order. The
entire DT-16-1389 performance work statement was filed by protestor on the docket on
September 28, 2018 and was and is unredacted.
The public and Sigmatech, including Philip Roman, therefore, had access to the
evidence which now forms the basis of the protestor’s current RCFC 60(b)(2) motion as
of September 28, 2018. Protestor now argues that “[i]t should be noted that the key
information Sigmatech [the entity] discovered was the existence of the Program Contract
[the 1389 SAMD Task Order]. Its knowledge of the Program Contract arose out of an
investigation to determine why FAST was so important to this procurement.” The DT-16-
1389 performance work statement within the 1389 SAMD Task Order, however, was
publicly available as of September 28, 2018. The relevance of the DT-16-1389 was
indicated in the September 28, 2018 redacted, publicly available complaint, in which
protestor asserted an impaired objectivity OCI based on KBRWyle’s performance under
a task order containing the DT-16-1389 performance work statement. A Sigmatech
employee could have carried out an OCI “investigation” into KBRWyle’s performance of
task orders, and would have had the relevant performance work statement of the relevant
task order, the 1389 SAMD Task Order, to conduct such an “investigation” as of
September 2018, in enough time to do so before the November 30, 2018 Opinion was
issued. The Sigmatech employee also would have been aware that protestor’s counsel
alleged in the redacted complaint that KBRWyle’s performance under the task order
containing the DT-16-1389 performance work statement contained overlap with
KBRWyle’s performance as a subcontractor under the task order issued under the
TORFQ, to which Sigmatech responded to with a quotation. Instead, Philip Roman’s
“investigation” did not occur until after the parties had fully litigated the protest, including
27
multiple rounds of briefing and oral argument and after the court had entered judgment in
favor of defendant and defendant-intervenor and after Sigmatech had filed an appeal.20
Although, for the reasons discussed above, protestor’s motion for relief under
RCFC 60(b)(2) fails, the substance of protestor’s argument raised in its RCFC 60(b)(2)
motion also fails. “Under FAR § 9.504(a), a CO [contracting officer] must ‘[i]dentify and
evaluate potential organizational conflicts of interest as early in the acquisition process
as possible’ and ‘[a]void, neutralize, or mitigate significant potential conflicts before
contract award.” Turner Constr. Co. v. United States, 645 F.3d 1377, 1386 (Fed. Cir.)
(emphasis and alterations in original) (quoting FAR § 9.504(a)), reh’g en banc denied
(Fed. Cir. 2011); see also FAR § 9.504(a) (2018). “‘A significant potential conflict of
interest is one which provides the bidding party a substantial and unfair competitive
advantage during the procurement process on information or data not necessarily
available to other bidders.’” Turner Constr. Co. v. United States, 645 F.3d at 1386 (quoting
PAI Corp. v. United States, 614 F.3d at 1352); see also ViON Corp. v. United States, 122
Fed. Cl. 559, 579 (2015) (quoting Turner Constr. Co. v. United States, 645 F.3d at 1386).
“However, the FAR recognizes that the identification of OCIs and the evaluation of
mitigation proposals are fact-specific inquiries that require the exercise of considerable
discretion.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at 1381-82 (citing FAR §
9.505); see also Monterey Consultants, Inc. v. United States, 120 Fed. Cl. 567, 572
(2015). Therefore, “[t]he CO has considerable discretion in determining whether a conflict
is significant.” Turner Constr. Co. v. United States, 645 F.3d at 1386 (citing PAI Corp. v.
United States, 614 F.3d at 1352); see also Parcel 49C Ltd. P’ship v. United States, 130
Fed. Cl. 109, 123 (2016) (citing PAI Corp. v. United States, 614 F.3d at 1352). The
identification of an OCI “must be based on ‘hard facts; a mere inference or suspicion of
an actual or apparent conflict is not enough.’” Turner Constr. Co. v. United States, 645
F.3d at 1387 (quoting PAI Corp. v. United States, 614 F.3d at 1352); see also Loch
20 Moreover, in the March 28, 2019 declaration signed by Philip Roman, Philip Roman
states that he helped prepared Sigmatech’s quotation in response to the TORFQ. In
Sigmatech’s quotation, Sigmatech had discussed its proposed performance and use of
FAST. See Sigmatech, Inc. v. United States, 141 Fed. Cl. at 293. Philip Roman also
stated that, as the incumbent contractor, Sigmatech employees used FAST during
performance of Sigmatech’s prior task order, albeit “sparingly.” Philip Roman, therefore,
appears to have been aware that performance of the task order issued to DigiFlight under
the TORFQ would require at least some use of FAST. In the April 10, 2019 declaration
signed by KBRWyle employee Stephen Smith, Mr. Smith asserts that Sigmatech
employees have access to FAST and use FAST “frequently.” Although the court’s public
Opinion redacted all of the references to DigiFlight’s use of FAST, in his March 28, 2019
declaration, Mr. Roman states, “[b]ecause of my knowledge of SAMD operations, I quickly
knew the name of the Program” after reading the public version of the court’s Opinion.
Given Mr. Roman’s knowledge of FAST and SAMD operations, it is unclear why Mr.
Roman did not realize that the publicly available copy of KBRWyle’s DT-16-1389
performance work statement, which involved KBRWyle developing or producing a
software system with the same functions and requirements as FAST, may have involved
FAST.
28
Harbour Grp., Inc. v. United States, 128 Fed. Cl. 294, 302 (2016) (“But, to prove an OCI,
LHG [protestor] must identify hard facts to support this claim. A mere inference or
suspicion of an actual or apparent conflict is not enough.” (citing PAI Corp. v. United
States, 614 F.3d at 1352)); Macaulay-Brown, Inc. v. United States, 125 Fed. Cl. 591, 602
(2016) (quoting Turner Constr. Co. v. United States, 645 F.3d at 1387).
An “impaired objectivity” OCI “occurs when a government contractor has conflicting
obligations under different government contracts, that compromises the contractor’s
ability to render impartial judgment.” See Axiom Res. Mgmt., Inc. v. United States, 78
Fed. Cl. at 592 n.17 (citing FAR § 9.505-3; and Aetna Gov’t Health Plans, Inc., B-254397
et al., 1995 WL 449806, at *8-9 (Comp. Gen. July 27, 1995)); see also L-3 Commc’ns
Corp. v. United States, 99 Fed. Cl. 283, 297 (2011) (“The impaired objectivity OCI occurs
‘where a firm’s work under one contract might require it to evaluate itself under another
contract.’” (quoting Turner Constr. Co. v. United States, 94 Fed. Cl. 561, 569 (2010), aff’d,
645 F.3d 1377 (Fed. Cir. 2011))). A judge of the United States Court of Federal Claims
has stated that the “primary concern” of an impaired objectivity OCI is that “a firm might
not be able to render ‘impartial advice.’” Turner Constr. Co. v. United States, 94 Fed. Cl.
at 569 (quoting Aetna Gov’t Health Plans, Inc., 1995 WL 449806, at *8); see also A-P-T
Research, Inc., B-413731.2, 2017 WL 1462127, at *9 (Comp. Gen. Apr. 3, 2017) (stating
that an impaired objectivity OCI “principally concerns the contractor’s ability to perform its
contractual obligations free of improper bias”). “In order to show an ‘impaired objectivity’
OCI, there must be hard facts showing that ‘a government contractor’s “‘“work under one
government contract could entail its evaluating itself, either through an assessment of
performance under another contract or an evaluation of proposals.”’”’” Aegis Techs. Grp.,
Inc. v. United States, 128 Fed. Cl. 561, 575 (2016) (quoting Ala. Aircraft Indus., Inc.-
Birmingham v. United States, 83 Fed. Cl. 666, 687 (2008) (quoting Aetna Gov’t Health
Plans, Inc., 1995 WL 449806, at *9), rev’d on other grounds, 586 F.3d 1372 (Fed. Cir.
2009)).
The case law in this court indicates that, under RCFC 60(b)(2), the court only is
able to consider evidence that occurred before the court’s issuance of its November 30,
2018 Opinion because “newly discovered evidence” under RCFC 60(b)(2) “only
encompasses facts which existed at the time the court made its decision and entered
judgment.” See Q Integrated Cos., LLC v. United States, 131 Fed. Cl. at 132 (citing TDM
Am., LLC v. United States, 100 Fed. Cl. at 490). In protestor’s motion for relief from
judgment, protestor argues that, “since performance began, the Program [FAST] has
enjoyed a renaissance at SAMD. Several divisions have reversed course, and now intend
to use the Program.” When the court issued its November 30, 2018 Opinion in the above-
captioned case, performance under the DigiFlight Task Order was voluntarily stayed by
defendant and DigiFlight had not begun performance under the DigiFlight Task Order.
According to Ashantas Cornelius’ April 15, 2019 Determination and Findings, Team
DigiFlight’s performance under the DigiFlight Task Order commenced in February 2019.
Allegations concerning a “renaissance” “since performance” of the DigiFlight Task Order
“began” under the DigiFlight Task Order, therefore, involve events that occurred after the
court issued its November 30, 2018 Opinion. Protestor’s alleged events involving the
alleged “renaissance” that has occurred “since performance began” under the DigiFlight
29
Task Order do not constitute “newly discovered evidence” under RCFC 60(b)(2) because
the alleged “renaissance” had not yet occurred at the time when the court issued its
November 30, 2018 Opinion and after the Clerk’s Office entered judgment that same day.
Regarding the 1389 SAMD Task Order, which was in existence when the court
issued its November 30, 2018 Opinion and judgment and was addressed therein, in the
April 15, 2019 Determination and Findings, Ashantas Cornelius asserts that, “[w]hile
KBRWyle can make recommendations as to the use of and changes to FAST, it is the
Government that determines if it will use the services provided by FAST and what
changes it would like to see to the program to better support the mission.” Ashantas
Cornelius concludes that KBRWyle’s “performance of the DTIC DS-TAT task orders does
not create an impaired objectivity organizational conflict of interest that would impact its
ability to provide impartial advice to the Government or otherwise jeopardize contractor
performance.”
The 1389 SAMD Task Order that KBRWyle is performing is an incrementally
funded task order “established in the amount of $43,679,493 for a period of fifty-seven
(57) months.” The $43,679,493.00 consists of “ESTIMATED COST” amounts that are
listed as not-to-exceed amounts, as well as a “FIXED FEE” amount of $2,239,210.00.
(capitalization in original). The 1389 SAMD Task Order indicates that the task order is
“CPFF” (cost-plus-fixed-fee). “A cost-plus-fixed-fee contract is a cost-reimbursement
contract that provides for payment to the contractor of a negotiated fee that is fixed at the
inception of the contract.” FAR § 16.306(a) (2019).
As stated by Ashantas Cornelius in the April 15, 2019 Determination and Findings,
“KBRWyle can make recommendations as to the use of and changes to FAST” under the
DigiFlight Task Order, although “it is the Government that determines if it will use the
services provided by FAST and what changes it would like to see to the program to better
support the mission.” If there are government-approved changes to FAST under the
DigiFlight Task Order, KBRWyle would make those changes to FAST pursuant to the
1389 SAMD Task Order. The increased work associated with changes to FAST would
not increase the fixed fee being paid to KBRWyle under the 1389 SAMD Task Order,
although KBRWyle would be able to bill for additional work at the same costs and rate of
fees if the use of FAST is increased by the government. The possible financial benefit to
KBRWyle, however, is speculative. None of the parties have addressed KBRWyle’s
compensation under the 1389 SAMD Task Order in any depth. In Ashantas Cornelius’
April 15, 2019 Determination and Findings, Ms. Cornelius states that the 1389 SAMD
“task order supporting the FAST programs is for labor only, supporting the necessary data
updates, and the report and data analysis,” but she did not further discuss the definition
of “labor” under the 1389 SAMD Task Order. Moreover, FAST is available to a number of
Department of Defense programs, which could account for other increases in FAST
utilization.
It also is speculative as to how much work would be generated if the government
accepted a KBRWyle proposed change to FAST under the DigiFlight Task Order and
required KBRWyle to make a proposed change under the 1389 SAMD Task Order.
30
According to the April 15, 2019 Determination and Findings, KBRWyle employees under
the 1389 SAMD Task Order and the DigiFlight Task Order “are performing different tasks
even though they are from the same company” and “are not co-located and have very
little to no interaction concerning work duties and responsibilities.” In the April 10, 2019
declaration signed by KBRWyle employee Zach Smith, Mr. Smith indicates that KBRWyle
employees performing under the 1389 SAMD Task Order provide updates to FAST for
when “the Army upgrades its operating systems (ie, Windows 7, 8, 10) and upgrades its
Army Financial databases.” Zach Smith further asserts that, “[o]ver the last 15 years, 27
customized reports have been added to FAST by request of SAMD and as requirements
change, more customized reports may be added.” Protestor argues that KBRWyle’s
position as a subcontractor under the DigiFlight Task Order permits KBRWyle to “‘drive
work to itself,’” but the record is speculative as to the extent of actual work KBRWyle is
able to propose to government decisionmakers and potentially have accepted by the
government. None of the parties have sufficiently addressed the type of or the extent of
recommendations to FAST that KBRWyle can propose under the DigiFlight Task Order
or a probable number of such recommendations. The record does not provide the court
with sufficient information to conclude that the government’s use of FAST will or will not
increase in performance because of KBRWyle proposed recommendations which may
be proposed to government officials for review and potential acceptance.
Moreover, Ashantas Cornelius’ April 15, 2019 Determination and Findings
suggests that there is substantial government oversight of KBRWyle’s performance under
the DigiFlight Task Order. According to Ashantas Cornelius, the “Chiefs” of
“Divisions/Branches determine at their discretion if the use of the FAST program is
necessary and affordable in support of their missions.”21 It does not appear that KBRWyle
is involved with the decisions of the “Chiefs” as to whether FAST is necessary for a SAMD
Branch or that KBRWyle provides any recommendation regarding a decision as to
whether a particular SAMD branch will use FAST. Ashantas Cornelius further asserts in
her April 15, 2019 Determination and Findings that, if FAST is required, “the
division/branch chiefs determine what information is needed and/or required based upon
their mission requirements. The appropriate Government supervisors within the
divisions/branches provide additional oversight and recommendations to the data
required and requested with approval through the Division/Branch chiefs.” A contracting
officer’s representative also provides “oversight,” although Ashantas Cornelius did not
discuss the role of the contracting officer’s representative in providing oversight.
Protestor argues: “That a government official makes the final decision on a
recommendation does not cure an organizational conflict of interest.” Based on the court’s
review of decisions involving OCI allegations, in certain situations, government oversight
may not be sufficient to prevent an OCI from occurring or sufficient to remedy an identified
OCI. See Nortel Gov’t Sols., Inc., B-299522.5 et al., 2008 WL 5473616, at *5 (Comp.
Gen. Dec. 30, 2008) (stating that “[o]ur conclusion that a potential impaired objectivity
21Based on Ashantas Cornelius’ April 15, 2019 Determination and Findings, only two of
the six SAMD divisions and one SAMD branch used FAST at the time of her April 15,
2019 Determination and Findings.
31
OCI exists is not altered by” the agency’s assertion that “it does not rely on the EMS
[enterprise management system] contractor alone for advice, nor by its reliance on the
fact that the government retains the ultimate decisionmaking authority” when agency
personnel had indicated “it would be ‘negligent’ not to have the” contractor’s advice). In
other situations, government oversight may prevent an impaired objectivity OCI from
occurring or mitigate an impaired objectivity OCI. See Wyle Labs., Inc., B-288892 et al.,
2001 WL 1735068, at *4 (Comp. Gen. Dec. 19, 2001) (“[T]he Air Force reports that well
before the RFP [request for proposal] was issued, the source selection evaluation team
considered whether a potential conflict of interest problem existed, and determined that
operation of the AFPSL [Air Force Primary Standards Laboratory] and one or more
PMELs [Precision Measurement Equipment Laboratories] by the same contractor would
not constitute a conflict of interest because government personnel are responsible for
monitoring and measuring contractor performance under both contracts and rely primarily
on information other than feedback from other contractors in performing these functions.
We see nothing unreasonable in this determination.” (internal reference omitted)).
Protestor’s attempted, asserted bright-line rule “[t]hat a government official makes the
final decision on a recommendation does not cure an organizational conflict of interest”
fails because, as the United States Court of Appeals for the Federal Circuit has
recognized, “the identification of OCIs and the evaluation of mitigation proposals are fact-
specific inquiries that require the exercise of considerable discretion.” Axiom Res. Mgmt.,
Inc. v. United States, 564 F.3d at 1381-82 (citing FAR § 9.505).
In the court’s November 30, 2018 Opinion, the court stated:
Sigmatech has not demonstrated why Team DigiFlight will be unable to
provide impartial advice on the interoperability of weapon systems and
subsystems due to KBRWyle’s provision of Scientific and Technical
Information to the Army in order to provide “improved reliability,
interoperability, and reduced cost of ownership for all AMCOM managed
aviation and missile FMS programs,” as KBRWyle is doing under the 1389
SAMD Task Order. The purposes of the task orders [the 1389 SAMD Task
Order and the DigiFlight Task Order] simply do not conflict or entail
evaluating the performance of other contractors.
Sigmatech, Inc. v. United States, 141 Fed. Cl. at 334. The court’s above-quoted
conclusion in its November 30, 2018 Opinion still remains true, even after considering the
additional arguments asserted by protestor. KBRWyle’s role under the DigiFlight Task
Order may permit KBRWyle to provide recommendations on how the Army should update
FAST, but the ultimate decision as to whether to use FAST, and whether to accept any
of KBRWyle’s proposed changes to FAST, appears to remain with the government
officials. Moreover, there is no evidence indicating that, under the DigiFlight Task Order,
KBRWyle will be evaluating KBRWyle’s performance under the 1389 SAMD Task Order.
Under the DigiFlight Task Order, KBRWyle only appears to have the ability to make
recommendations regarding FAST to government employees, and government
contracting officers and government supervising personnel must make the final decisions
as to KBRWyle’s proposed recommendations.
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It also is less than clear, what financial benefit, if any, KBRWyle receives if
KBRWyle recommended changes to FAST are approved by government officials. As
discussed above, judges of this court have stated that a motion for relief under RCFC
60(b)(2) should be granted if actual newly discovered evidence “‘“‘“clearly would have
produced a different result if presented before the original judgment.”’”’” See, e.g.,
Spengler v. United States, 128 Fed. Cl. at 344 (quoting Venture Indus. Corp. v. Autoliv
ASP, Inc., 457 F.3d at 1328 (quoting Good v. Ohio Edison Co., 149 F.3d at 423)).22 Under
a standard such as the “clearly would have produced a different result” standard,
protestor’s motion under RCFC 60(b)(2) fails because the lack of an established, non-
speculative benefit to KBRWyle and because government officials decide, without input
from KBRWyle, whether even to use FAST. Moreover, government officials are trained in
FAST and retain the authority as to whether to approve a KBRWyle recommended
change to FAST. On the record before the court, the court is not persuaded that, as
suggested in protestor’s RCFC 60(b)(2) motion, the knowledge protestor now contends
is newly discovered “‘“‘“clearly would have produced a different result if presented before
the original judgment.”’”’” See, e.g., Spengler v. United States, 128 Fed. Cl. at 344
(quoting Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d at 1328 (quoting Good v.
Ohio Edison Co., 149 F.3d at 423)). Because of the uncertainty as to the benefits
KBRWyle could receive and because of the asserted, and uncontroverted, extensive
government control on decisions involving FAST, protestor’s motion would fail if
protestor’s RCFC 60(b)(2) motion relied on newly discovered evidence.
Other judges of this court also have stated that newly discovered evidence must
be “‘material, not merely impeaching or cumulative, and that a new trial would probably
produce a different result.’” TDM Am., LLC v. United States, 100 Fed. Cl. at 490
(emphasis added) (quoting Yachts Am., Inc. v. United States, 8 Cl. Ct. at 281). Although
22 In Venture Industries Corp., the United States Court of Appeals for the Federal Circuit
was addressing an appeal of the United States District Court for the Eastern District of
Michigan’s denial of a motion for relief from judgment under Rule 60(b)(2) of the Federal
Rules of Civil Procedure. See Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d at 1323.
The United States Court of Appeals for the Federal Circuit quoted a case from the United
States Court of Appeals for the Sixth Circuit and stated: “‘In order to prevail on a Rule
60(b)(2) motion, a movant must demonstrate . . . that the evidence is material and
controlling and clearly would have produced a different result if presented before the
original judgment.’” Id. at 1328 (omission in original) (quoting Good v. Ohio Edison Co.,
149 F.3d at 423). In a different case, the United States Court of Appeals for the Federal
Circuit stated that relief under RCFC 60(b)(2) “is a procedural issue on which we apply
regional circuit law.” Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1204-
05 (Fed. Cir. 2005) (citing Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1384 (Fed.
Cir. 1999)). In its motion for relief from judgment under RCFC 60(b)(2), protestor quotes
Venture Industries Corp. and argues that the court should grant a RCFC 60(b)(2) motion
when the alleged newly discovered evidence “clearly” would produce a different result.
(internal quotation marks and citation omitted).
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the difference between “clearly” and “probably” may be difficult to quantify, “probably”
producing a different result appears to be a lower standard than “clearly” producing a
different result.23 In the above-captioned protest, given the unresolved questions
identified in this Order, it is speculative from the record whether the protestor’s argument
involving FAST even would “‘probably produce a different result.’” See TDM Am., LLC v.
United States, 100 Fed. Cl. at 490 (quoting Yachts Am., Inc. v. United States, 8 Cl. Ct. at
281).24
In addition to the impaired objectivity OCI discussed above, protestor separately
argues in its RCFC 60(b)(2) motion that it was arbitrary and capricious to assign
Sigmatech’s quotation a strength “based on its ability to support and modify the Program
[FAST] because the Agency pays the Team Member [KBRWyle] to support and modify
the Program [FAST].” The court finds unpersuasive protestor’s argument that it was
unreasonable for the Army to assign DigiFlight’s quotation a strength because the
reasoning the Army provided regarding its decision to award a strength to sections 2.1.1
and 2.1.3 of DigiFlight’s quotation was much broader than just Team DigiFlight’s ability to
support FAST. See Sigmatech, Inc. v. United States, 141 Fed. Cl. at 318-19. The Army
awarded a strength to sections 2.1.1 and 2.1.3 of DigiFlight’s quotation based on, among
other reasons, Team DigiFlight’s “‘superior understanding of multiple SAMD databases’”
and “‘specialized knowledge and experience in both legacy and current data systems,’”
as stated in the court’s November 30, 2018 Opinion. See id. Protestor’s argument that
the Army should not have awarded a strength to sections 2.1.1 and 2.1.3 of DigiFlight’s
quotation, therefore, also would fail.
23Because protestor’s RCFC 60(b)(2) motion, as discussed above, does not rely on newly
discovered evidence, the court need not resolve whether the standard under RCFC
60(b)(2) should be “clearly” producing a different result or “probably” producing a different
result.
24 As stated above, protestor separately argues in its RCFC 60(b)(2) motion that
KBRWyle “did not disclose any possible conflicts of interest” on its Organizational Conflict
of Interest Certification submitted as part of DigiFlight’s quotation in response to the
TORFQ, and that DigiFlight, therefore, should have been disqualified from the
procurement under the TORFQ. In its reply in support of its RCFC 60(b)(2) motion,
protestor argues that, “[e]ven if there were no actual conflict of interest, the Agency and
DigiFlight both ignore that KBRWyle’s failure to disclose a possible organizational conflict
of interest should have disqualified Team DigiFlight from award.” (emphasis in original).
Although defendant and defendant-intervenor did not address protestor’s allegation of a
basis to have disqualified DigiFlight, there is an absence of proof in the record of such a
necessary disclosure and disqualification basis, and protestor’s RCFC 60(b)(2) motion
does not rely on newly discovered evidence.
34
CONCLUSION
Protestor’s motion for relief from judgment under RCFC 60(b)(2) is DENIED. On
or before Wednesday, July 10, 2019, the parties shall propose redactions to this Order.
The parties shall provide an explanation to support each proposed redaction.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
35