York Telecom Corporation v. United States ( 2017 )

In the United States Court of Federal Claims
BID PROTEST
No. 15-489C
Filed Under Seal: January 11, 2017
Reissued for Publication: January 13, 2017*
)
YORK TELECOM CORPORATION, )
)
Plaintiff, ) Post-Award Bid Protest; Judgment upon
) the Administrative Record, RCFC 52.1;
v. ) Supplementing the Administrative
) Record; Standing; FAR 52.212-1; Non-
THE UNITED STATES, ) Manufacturer Rule; NAICS Code Size
) Standard.
Defendant. )
)
Daniel J. Donohue, Counsel of Record, Walter A. I. Wilson, Of Counsel, Polsinelli PC,
Washington, DC, for plaintiff.
Elizabeth Anne Speck, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
United States Department of Justice, Washington, D.C., Victoria H. Kauffman, Of Counsel,
Amber M. Hufft, Of Counsel, James A. Vatne, Of Counsel, National Aeronautics and Space
Agency, Karen H. Holzen, Of Counsel, United States Small Business Administration, for
defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Plaintiff, York Telecom Company (“Yorktel”), brought this post-award bid protest
matter, challenging the National Aeronautics and Space Agency’s (“NASA”) determination that
Yorktel was not an eligible small business for a contract to provide certain information
*
This Memorandum Opinion and Order was originally filed under seal on January 11, 2017 (docket entry
no. 52), pursuant to the Protective Order entered in this action on May 14, 2015 (docket entry no. 14).
The parties were given an opportunity to advise the Court of their views with respect to what information,
if any, should be redacted under the terms of the Protective Order. The parties filed a joint status report
on January 13, 2017, notifying the Court that they do not believe any information should be redacted
(docket entry no. 54). And so, the Court is reissuing its Memorandum Opinion and Order dated January
11, 2017 without redactions.
technology products and services, because Yorktel failed to meet the size standard for the
contract. Yorktel has moved for judgment upon the administrative record, pursuant to Rule 52.1
of the Rules of the United States Court of Federal Claims (“RCFC”). The government has
moved to dismiss this matter or, in the alternative, for judgment upon the administrative record,
pursuant to RCFC 12(b)(1) and RCFC 52.1. In addition, the government has filed a motion to
supplement the administrative record with the declaration of the contracting officer for the
contract. For the reasons set forth below, the Court (1) GRANTS-IN-PART the government’s
motion to dismiss; (2) GRANTS the government’s motion for judgment upon the administrative
record; (3) DENIES Yorktel’s motion for judgment upon the administrative record; and (4)
DENIES the government’s motion to supplement the administrative record.
II. FACTUAL AND PROCEDURAL BACKGROUND1
A. Factual Background
In this post-award bid protest matter, Yorktel challenges NASA’s determination that
Yorktel was not eligible for a contract to provide certain information technology products and
services (“SEWP V Contract”), because Yorktel failed to meet the size standard for this small
business set-aside contract. See generally Compl. Specifically, Yorktel alleges that NASA erred
in determining that Yorktel is ineligible for award of the SEWP V Contract, because (1) the
relevant request for proposals requires that offerors that are non-manufacturers of goods and
services satisfy a 500-employee size standard and (2) Yorktel meets this size requirement. See,
e.g., id. at ¶¶ 2-3; see Pl. Mot. at 13-16. As relief, Yorktel requests that the Court enjoin NASA
from terminating its contract. Compl. at ¶ 1, Requests for Relief.
1. The Request For Proposals
The salient facts in this bid protest matter are undisputed. On August 16, 2013, NASA
issued a Solutions For Enterprise-Wide Procurement (“SEWP V”) request for proposals as a
commercial item procurement (“RFP”). AR at 1-262. The principal purpose of the procurement
1
The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s complaint
(“Compl.”); the administrative record (“AR”); plaintiff’s motion for judgment upon the administrative
record (“Pl. Mot.”); and defendant’s motion to dismiss or, in the alternative, cross-motion for judgment
upon the administrative record (“Def. Mot.”). Except where otherwise noted, the facts recited herein are
undisputed.
2
is to provide information technology products and services to the entire federal sector. Id. at
2036. The contracts resulting from the procurement, including the SEWP V Contract, are
multiple-award, indefinite-delivery, indefinite-quantity contracts. Id. at 16, 115. All of the
contracts have a five-year ordering period, with a minimum amount of supplies and services to
be ordered of $25.00 and a maximum value of $20 billion for each contract. Id. at 2089.
The multi-award procurement involved four different groups of offerors. Id. at 1. The
relevant portion of the solicitation at issue in this matter contemplated the award of small
business set-aside contracts. AR at 1. And so, NASA utilized the North American Industry
Classification System (“NAICS”) code and the accompanying size standards to determine
whether an offeror was a small business. See Advanced Sys. Tech., Inc. v. United States, 69 Fed.
Cl. 474, 475 n.1 (2006)); 13 C.F.R. §§ 121.401, 121.402; see also Rotech Healthcare Inc. v.
United States, 71 Fed. Cl. 393, 407 (2006) (“Rotech I”).
In this regard, NASA assigned the relevant category in this matter–Category B, Group C–
a NAICS code of 541519 for Information Technology Value Added Resellers (“ITVAR”). AR
at 1, 4; see also 13 C.F.R. § 121.201 (2015). This NAICS code requires that offerors meet a size
standard of 150 employees or less. AR at 1, 4; 13 C.F.R. § 121.201.
The RFP also includes Federal Acquisition Regulation (“FAR”) 52.212-1(a), which
provides:
INSTRUCTIONS TO OFFERORS - COMMERCIAL ITEMS (52.212-1) (JUL
2013)
(a) North American Industry Classification System (NAICS) code and small
business size standard. The NAICS code and small business size standard for this
acquisition appear in Block 10 of the solicitation cover sheet (SF 1449).
However, the small business size standard for a concern which submits an offer in
its own name, but which proposes to furnish an item which it did not itself
manufacture, is 500 employees.
AR at 130; see also 48 C.F.R. § 12.301(b)(1); 48 C.F.R. § 52.212-1. This provision derives from
a provision in the Small Business Act known as the statutory non-manufacturer rule, which
provides that:
(A) An otherwise responsible business concern that is in compliance with the
requirements of subparagraph (B) shall not be denied the opportunity to submit and
have considered its offer for any procurement contract for the supply of a product
3
to be let pursuant to this subsection or subsection (a) of section 644 of this title
solely because such concern is other than the actual manufacturer or processor of
the product to be supplied under the contract.
(B) To be in compliance with the requirements referred to in subparagraph (A),
such a business concern shall— . . .
(ii) be a small business concern under the numerical size standard for the
Standard Industrial Classification Code assigned to the contract solicitation
on which the offer is being made; . . . .
15 U.S.C. § 637(a)(17). The United States Small Business Administration (“SBA”) has
promulgated two relevant regulations to implement the statutory non-manufacturer rule. First,
13 C.F.R. § 121.402 provides, in relevant part, that:
A concern that submits an offer or quote for a contract or subcontract where the
NAICS code assigned to the contract or subcontract is one for supplies, and
furnishes a product it did not itself manufacture or produce, is categorized as a
nonmanufacturer and deemed small if it has 500 or fewer employees and meets the
requirements of § 121.406(b).
13 C.F.R. § 121.402(b)(2). In addition, 13 C.F.R. § 121.406(b) provides, in relevant part:
(1) A firm may qualify as a small business concern for a requirement to provide
manufactured products or other supply items as a nonmanufacturer if it:
(i) Does not exceed 500 employees. . . .
(3) The nonmanufacturer rule applies only to procurements that have been assigned
a manufacturing or supply NAICS code. The nonmanufacturer rule does not
apply to contracts that have been assigned a service, construction, or specialty
trade construction NAICS code.
13 C.F.R. § 121.406(b).
On November 25, 2015, Congress enacted the National Defense Authorization Act for
Fiscal Year 2016 (“NDAA”) which, among other things, amended the Small Business Act to
provide that the statutory non-manufacturer rule applies when a contract “has as its principal
purpose the supply of a product.” Pub. L. No. 114-92, 129 Stat 726 (Nov. 25, 2015). In
addition, the NDAA added the following language: “(C) Limitation.–This paragraph shall not
apply to a contract that has as its principal purpose the acquisition of services or construction.”
Id. On January 26, 2016, the SBA promulgated a final rule providing that the supply component
of a small business-set aside ITVAR contract is required to comply with the non-manufacturer
4
rule. Small Business Size Standards: Industries with Employee Based Size Standards Not Part of
Manufacturing, Wholesale Trade, or Retail Trade, 81 Fed. Reg. 4,436, 2016 WL 287502 (Jan.
26, 2016).
2. Questions And Answers Regarding The Size Standard
Following the issuance of the RFP, the record evidence shows that NASA engaged in a
question-and-answer process with offerors. AR at 975-1183. NASA advised all offerors that all
of the questions and answers would be made available on a website and the agency provided all
potential offerors with the link to that website. AR at 1-2.
As a part of this question-and-answer process, NASA responded to several questions
regarding the NAICS code and size standard for the SEWP V Contract. Id. at 975-1183. In
particular, question 511 requested confirmation of the size standard and NASA replied that the
size standard for the RFP was 150 employees. Id. at 1069. Question 861, also requested
information about what a business with more than 150 employees should do to remain compliant
with the RFP. Id. at 1123. In response, NASA replied that a business with more than 150
employees would be considered “other than small” and would need to complete a small business
subcontracting plan to remain eligible for award, because the size standard for the contract was
150 employees. Id. at 1123.
In addition, question 951 asked, “[i]f an offeror is under 500 employees, is it considered a
small business under Category B, Group D?” 2 Id. at 1139. In response, NASA replied that
“Yes, The size standard for NAICS 541519 as it applies to that function, is 150 employees. For
the NAICS Code under Category B, Group D, the firm has to meet the size standards.” Id.
NASA also clarified that “as per SBA guidelines, the non-manufacturer rule does not apply,”
because the NAICS code for this particular contract–541519–is designated for services. Id. at
1144 (response to question 976, part of set five); see also id. at 1156 (reiterating that the non-
manufacturer rule does not apply in response to question 1055, part of set five).
NASA also issued twelve amendments to the RFP. See id. at 263-974. NASA attached
cover letters to at least three of these amendments–Amendments 7, 8, and 10–that include a link
to the website where offerors could find the questions and answers for the procurement. See id.
2
The NAICS code for Category B, Group C is the same as for Category B, Group D. AR at 1.
5
at 265, 466, 631. These cover letters provide that “[p]otential Offerors are requested to
periodically monitor the website for updates.” Id. at 265, 466, 631. All potential offerors
received the cover letters. Id. at 265, 466, 631.
In addition, the administrative record also shows that the cover letters for Amendments 7,
8, and 10 provide that “[a]ll of the documents related to this procurement, including this letter,
the solicitation, attachments, and any amendments will be obtainable electronically.” Id. at 266,
466, 631. The cover letters for Amendments 7, 8, and 10 are also signed by the contracting
officer and the amendments are also signed by the contracting officer. Id. at 266-67, 466-67,
632-33, 803-04.
3. Contract Award And SBA Size Determination
On December 16, 2013, Yorktel submitted its offer to NASA. AR at 1184-1820. In its
offer, Yorktel states that it is a non-manufacturer and that it employs between 150 and 500
employees. Id. at 1184, 1193.
On April 10, 2015, NASA awarded the SEWP V Contract to Yorktel. Id. at 2150-294.3
But, the award decision was short-lived. On April 21, 2015, NASA informed Yorktel that the
agency awarded the SEWP V Contract to Yorktel in error, because the agency misinterpreted
Yorktel’s size as employing 150 employees or less. Id. at 2299, 2307-09, 2312. On the same
date, NASA’s contracting officer, LaShawn K. Feimster, informed Yorktel that NASA was
suspending Yorktel’s contract and referring the matter to the applicable SBA Area Office for a
size determination. Id. at 2307-09, 2322-23, 2333-34. On April 22, 2015, Yorktel responded to
Ms. Feimster explaining that Yorktel was a small business under the non-manufacturer rule size
standard, as set forth in this solicitation at FAR 52.212-1(a). Id. at 2313-14.
On or about April 29, 2015, Ms. Feimster filed a size determination protest with the
SBA’s Area 1 Government Contracting Office, requesting a “Post Award Size Determination of
firm’s Small Business size status” under the 150-employee size standard applicable under
NAICS code 541519. Id. at 2297-2298. On May 21, 2015, the SBA Area I Office issued a
decision concluding that Yorktel did not meet the applicable size standard for the procurement.
3
NASA awarded 80 SEWP V contracts under Category B, Group C. Def. Mot. at 4; see AR at 2049,
2061-68.
6
Id. at 2465-72. In its size determination, the SBA concluded that the applicable size standard for
the SEWP V Contract was 150 employees or less and that Yorktel did not meet this size
standard. Id. The SBA also determined that NAICS code 541519 for the SEWP V Contract is a
service code, and that the non-manufacturer rule did not apply to the contract. Id. at 2467 (citing
13 C.F.R. § 121.406(b)(3)).
On June 2, 2015, Yorktel appealed the SBA’s size determination to the SBA’s Office of
Hearings and Appeals (“SBA-OHA”). Id. at 2501-23. On May 18, 2016, the SBA-OHA issued
a decision finding that Yorktel is not an eligible small business for the procurement at issue. Id.
at 2620-30. Specifically, the SBA-OHA determined that: (1) the inclusion of FAR 52.212-1 in
the solicitation did not impose a 500-employee size standard on non-manufacturer offerors; (2)
the non-manufacturer rule does not apply to the solicitation at issue, because the solicitation is
not assigned a manufacturing or supply NAICS code; and (3) Yorktel failed to comply with the
requirements in the statutory non-manufacturer rule and, thus, could not seek the protection of
the rule. Id.
B. Procedural Background
Yorktel filed the complaint in this matter on May 12, 2015. See generally Compl. On
that same day, Yorktel filed motions for a temporary restraining order and for a preliminary
injunction, as well as a memorandum in support of these motions. See generally Pl. Mot. for
TRO; Pl. Mot. for PI; Pl. Memo. On May 13, 2015, the Court held in abeyance plaintiff’s
motions for a temporary restraining order and a preliminary injunction in light of an agreement
reached between the parties, in which the government agreed to, among other things, lift the
contracting officer’s suspension of plaintiff’s contract. See Scheduling Order, May 13, 2015.
On May 14, 2015, the Court entered a Protective Order in this matter. See Protective Order.
The government filed the administrative record in this matter on May 27, 2015. See
generally AR. On June 10, 2015, Yorktel filed a motion for judgment upon the administrative
record. See generally Pl. Mot. On June 24, 2015, the government filed a motion to dismiss or,
in the alternative, a cross-motion for judgment upon the administrative record, and a response to
plaintiff’s motion for judgment upon the administrative record. See generally Def. Mot. On
June 24, 2015, the government filed a motion to supplement the administrative record with a
declaration of LaShawn K. Feimster (“Feimster Declaration”). See Def. Mot. to Supp. By leave
7
of the Court, the government supplemented the record with two documents related to Yorktel’s
appeal to SBA-OHA on June 9, 2015. See generally Jt. Mot. to Supp. AR, June 8, 2015; Order,
June 9, 2015. On June 9, 2015, the government also corrected the administrative record with a
System for Award Management report. See generally Def. Mot. to Correct AR, June 9, 2015;
Order Granting Mot. to Correct, June 9, 2015. On July 6, 2015, Yorktel filed a response to the
government’s motions and a reply in support of its motion for judgment upon the administrative
record. See generally Pl. Reply. On July 13, 2015, the government filed its reply in support of
its motion to dismiss or, in the alternative, cross-motion for judgment upon the administrative
record. See generally Def. Reply.
On July 6, 2015, Yorktel filed a response opposing the government’s motion to
supplement the administrative record. Pl. Opp. to Def. Mot. to Supp. On July 13, 2015, the
government filed a reply to Yorktel’s response opposing supplementation of the administrative
record with the Feimster Declaration and an unopposed motion to supplement the administrative
record with an update on the SBA size appeal at SBA-OHA. Def. Reply to Mot. to Supp.;
Unopposed Mot. to Supp., July 13, 2015. On July 27, 2015, the Court, at the request of the
parties, stayed this matter pending the United States Court of Appeals for the Federal Circuit’s
resolution of Rotech Healthcare, Inc. v. United States. See generally Mot. to Stay; Order, July
27, 2015. On April 11, 2016, the Court, at the request of the parties, continued the stay of this
matter pending the SBA-OHA’s resolution of plaintiff’s size protest appeal. Order, April 11,
2016; see Joint Status Report, April 11, 2016.
On June 2, 2016, the parties notified the Court that the SBA-OHA had decided Yorktel’s
size protest appeal. Joint Status Report, June 2, 2016. On June 3, 2016, the Court lifted the stay
of this matter and granted the government’s motion to supplement the record with the SBA-OHA
size appeal documents. Order, June 3, 2016. Thereafter, on June 21, 2016, the government
supplemented the administrative record to include the complete record of the size protest at the
SBA-OHA. See Notice, June 21, 2016.
On August 5, 2016, plaintiff filed an initial supplemental brief. Pl. Supp. Brief. On
September 9, 2016, the government filed an initial supplemental brief. Def. Supp. Brief. On
September 23, 2016, plaintiff filed a response to the government’s supplemental brief and a reply
in support of its supplemental brief. Pl. Supp. Reply Brief. On October 7, 2016, the government
8
filed a response to plaintiff’s supplemental brief and a reply in support of its own supplemental
brief. Def. Supp. Reply Brief.
The matters having been fully briefed, the Court addresses the pending motions.
III. LEGAL STANDARDS
A. Bid Protest Jurisdiction And Standing
The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). And so, to have standing to pursue a bid protest action a
protestor must be an “interested party.”
The United States Court of Appeals for the Federal Circuit has applied the Competition in
Contracting Act’s definition of interested party in the context of bid protest matters. Am. Fed. of
Gov. Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001); see also 31
U.S.C. §§ 3551-56. The Competition in Contracting Act defines the term “interested party” to
mean an “actual or prospective bidder or offeror whose direct economic interest would be
affected by the award of the contract or failure to award the contract.” Id.
With respect to determining whether a protestor has a “direct economic interest,” the
Federal Circuit has also held that “‘[a] protest will, by its nature, dictate the necessary factors for
a ‘direct economic interest.’” Sys. App. & Techs., Inc. v. United States, 691 F.3d 1374, 1382
(Fed. Cir. 2012); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361-62 (Fed. Cir. 2009);
see also Nat’l Air Cargo Grp., Inc. v. United States, 126 Fed. Cl. 281, 292 (2016). The Federal
Circuit has also adopted two tests to determine when a protestor has a direct economic interest.
Typically, in post-award bid protests cases, protestors are required to prove that they had a
substantial chance of winning the contract. See Orion Tech., Inc. v. United States, 704 F.3d
1344, 1348 (Fed. Cir. 2013). In pre-award bid protests, the Federal Circuit has held that a
protestor may demonstrate “a non-trivial competitive injury which can be redressed by judicial
relief” to demonstrate a direct economic interest. See Weeks Marine, 575 F.3d at 1361-62
(internal quotations omitted).
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In addition, this Court reviews agency actions in bid protest matters under the “arbitrary
and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth
in the Administrative Procedure Act). And so, under the Administrative Procedure Act standard,
an award may be set aside if “‘(1) the procurement official’s decision lacked a rational basis; or
(2) the procurement procedure involved a violation of regulation or procedure.’” Banknote
Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)).
In this regard, the Federal Circuit has explained that:
When a challenge is brought on the first ground, the test is whether the contracting
agency provided a coherent and reasonable explanation of its exercise of discretion,
and the disappointed bidder bears a “heavy burden” of showing that the award
decision had no rational basis. When a challenge is brought on the second ground,
the disappointed bidder must show a clear and prejudicial violation of applicable
statutes or regulations.
Id. at 1332-33 (internal citations omitted)
In reviewing an agency’s procurement decision, the Court also recognizes that the
agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), overruled on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977) (citations omitted). In addition, the Court should not substitute its
judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997).
And so, “[t]he protestor must show, by a preponderance of the evidence, that the agency’s
actions were either without a reasonable basis or in violation of applicable procurement law.”
Info. Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d
1312 (Fed. Cir. 2003) (citation omitted); see Gentex Corp. v. United States, 58 Fed. Cl. 634, 648
(2003).
This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s
action, the court should stay its hand even though it might, as an original proposition, have
reached a different conclusion . . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.
Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect
of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence
before the agency,” then the resulting action lacks a rational basis and, therefore, is defined as
10
“arbitrary and capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d
1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).
B. Judgment Upon The Administrative Record
Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to
the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative
record already in existence.”). And so, unlike a summary judgment motion brought pursuant to
Rule 56, “the existence of genuine issues of material fact does not preclude judgment upon the
administrative record” under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242
(2011) (citations omitted); RCFC 56. Rather, the Court’s inquiry is whether, “given all the
disputed and undisputed facts, a party has met its burden of proof based on the evidence in the
record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006).
C. Supplementing The Administrative Record
The United States Court of Appeals for the Federal Circuit has held that the “focal point”
of the Court’s review of an agency’s procurement decision ‘“should be the administrative record
already in existence, not some new record made initially in the reviewing court.”’ Axiom Res.
Mgmt., Inc., 564 F.3d at 1379 (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). By limiting its
review to the “record actually before the agency” the Court guards against “using new evidence
to ‘convert the arbitrary and capricious standard’” applicable to bid protest actions “‘into
effectively de novo review.’” Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 731,
735 (2000)). And so, “the parties’ ability to supplement the administrative record is limited” and
the administrative record should only be supplemented “if the existing record is insufficient to
permit meaningful review consistent with the APA.” Id. at 1379-81; see also Caddell Constr.
Co., Inc. v. United States, 111 Fed. Cl. 49, 93 (2013); DataMill, Inc. v. United States, 91 Fed. Cl.
722, 732 (2010) (Plaintiff “bears the burden of explaining why the agency-assembled
administrative record is insufficient.”).
This Court has interpreted the Federal Circuit’s directive in Axiom to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps. L-3
Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 672 (2009). But, supplementation of
11
the administrative record is not permitted when the documents proffered are unnecessary for an
effective review of the government’s procurement decision. Id. And so, supplementation of the
administrative record is appropriate when necessary to provide the Court with a record
containing the information upon which the agency relied when it made its decision, as well as
any documentation revealing the agency’s decision-making process. Citizens to Pres. Overton
Park, Inc., 401 U.S. at 420; see also Beta Analytics Int’l, Inc. v. United States, 61 Fed. Cl. 223,
225 (2004) (“‘[S]upplementation might be necessary to help explain an agency’s decision and
thereby facilitate meaningful judicial review of the agency decision, particularly when a
subjective value judgment has been made but not explained.’”) (quoting Orion Int’l Techs. v.
United States, 60 Fed. Cl. 338, 343-44 (2004) (finding that supplementation is warranted when
the record is missing “relevant information that by its very nature would not be found in an
agency record-such as evidence of bad faith, information relied upon but omitted from the paper
record, or the content of conversations”)).
D. Injunctive Relief
Lastly, under its bid protest jurisdiction, the Court “may award any relief [it] considers
proper, including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2); see also Centech
Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a
permanent injunction, the Court “considers: (1) whether . . . the plaintiff has succeeded upon the
merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of
injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.” PGBA,
LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill.
of Gambell, Alaska, 480 U.S. 531, 546 n. 12 (1987) (“The standard for a preliminary injunction
is essentially the same as for a permanent injunction with the exception that the plaintiff must
show a likelihood of success on the merits rather than actual success.”)); see also Centech Grp.,
Inc., 554 F.3d at 1037. These four factors are to be considered collectively, rather than
individually, such that “[n]o one factor, taken individually, is necessarily dispositive. . . . [T]he
weakness of the showing regarding one factor may be overborne by the strength of the others.”
FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Conversely, “the absence of an
adequate showing with regard to any one factor may be sufficient” to deny injunctive relief. Id.
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A plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon a
motion for permanent injunctive relief. Cf. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd.,
357 F.3d 1319, 1325 (Fed. Cir. 2004), reh’g and reh’g en banc denied (finding that a plaintiff
who cannot demonstrate likely success upon the merits cannot prevail upon its motion for
preliminary injunctive relief). This Court has also found success upon the merits to be “the most
important factor for a court to consider when deciding whether to issue injunctive relief.”
Dellew Corp. v. United States, 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 312 (Fed. Cir. 2007)). However, while success upon the merits is
necessary, it is not sufficient alone for a plaintiff to establish that it is entitled to injunctive relief.
See Contracting, Consulting, Eng’g LLC v. United States, 104 Fed. Cl. 334, 353 (2012)
(“Although plaintiff’s entitlement to injunctive relief depends on its succeeding on the merits, it
is not determinative because the three equitable factors must be considered, as well.”) (citing
PGBA, LLC, 389 F.3d at 1228-29) (citation omitted).
IV. LEGAL ANALYSIS
In its motion for judgment upon the administrative record, Yorktel challenges NASA’s
determination that it is ineligible for award for the SEWP V Contract because Yorktel does not
meet the size standard for the contract. See generally Pl. Mot. Specifically, Yorktel alleges that
the RFP provides for a 500-employee size standard for non-manufacturers and that Yorktel is a
non-manufacturer that meets this standard, despite the fact that the NAICS code for the contract
imposes a 150-employee size standard. Id. at 9-13. The government counters in its motion to
dismiss that the Court should dismiss this matter for lack of subject-matter jurisdiction because:
(1) as a contract awardee, Yorktel cannot pursue this bid protest action, and (2) Yorktel’s
challenge to the size standard for the SEWP V Contract is untimely under Blue & Gold Fleet,
L.P. v. United States. Def. Mot. at 14-24; see Blue & Gold Fleet, 492 F.3d at 1313. In the
alternative, the government argues that it is entitled to judgment upon the administrative record
in its favor, because the RFP for the SEWP V Contract requires that Yorktel meet the 150-
employee size standard. Def. Mot. at 24-35. The government has also moved to supplement the
administrative record in this matter with a declaration of LaShawn Feimster, the contracting
officer for the SEWP V Contract. Def. Mot. to Supp.
13
For the reasons discussed below, the Court may exercise its bid protest jurisdiction under
the Tucker Act to consider Yorktel’s claim and Yorktel also has standing to pursue its claim.
Nonetheless, the Court must dismiss this matter because Yorktel’s claim challenging the size
standard for the SEWP V Contract is untimely. In addition, the administrative record in this
matter also shows that Yorktel has not met the size standard required for the SEWP V Contract.
Lastly, the government also has not demonstrated that the omission of the declaration of Ms.
Feimster would preclude meaningful judicial review of this matter by the Court. And so, the
Court grants-in-part the government’s motion to dismiss; grants the government’s motion for
judgment upon the administrative record; denies Yorktel’s motion for judgment upon the
administrative record; and denies the government’s motion to supplement the administrative
record.
A. Supplementation Of The Administrative Record Is Not Warranted
As a preliminary matter, the Court must deny the government’s request to supplement the
extensive administrative record in this matter with the declaration of LaShawn K. Feimster. See
generally Def. Mot. to Supp. It is well established that a “part[y’s] ability to supplement the
administrative record is limited” and the administrative record should only be supplemented “if
the existing record is insufficient to permit meaningful review consistent with the APA.” Axiom
Res. Mgmt., Inc., 564 F.3d at 1379-81; see also Caddell Constr. Co., Inc., 111 Fed. Cl. at 93;
DataMill, Inc., 91 Fed. Cl. at 732 (Plaintiff “bears the burden of explaining why the agency-
assembled administrative record is insufficient.”). And so, the Court will only supplement the
administrative record when necessary to provide the Court with a record containing the
information upon which the agency relied when it made its decision, as well as any
documentation revealing the agency’s decision-making process. Citizens to Pres. Overton Park,
Inc., 401 U.S. at 420; see also Beta Analytics Int’l, Inc., 61 Fed. Cl. at 225 (“‘[S]upplementation
might be necessary to help explain an agency’s decision and thereby facilitate meaningful
judicial review of the agency decision, particularly when a subjective value judgment has been
made but not explained.’”) (quoting Orion Int’l Techs., 60 Fed. Cl. at 343-44 (finding that
supplementation is warranted when the record is missing “relevant information that by its very
nature would not be found in an agency record-such as evidence of bad faith, information relied
upon but omitted from the paper record, or the content of conversations”)).
14
In this case, the government argues that supplementation of the administrative record
with the proffered declaration is necessary “because the administrative record does not explain
how NASA evaluated offerors’ small business status” for the SEWP V Contract. Def. Mot. to
Supp. at 2. But, as Yorktel correctly notes in its opposition to the government’s motion to
supplement, “[t]he issue [in this litigation] is not what the Contracting Officer believed at the
time she awarded a contract to Yorktel or the reasonableness of those beliefs . . . . The issue of
law for the Court is whether the Solicitation established a 500-employee standard that plaintiff
meets.” Pl. Opp. to Def. Mot. to Supp. at 3.
There is already an extensive administrative record detailing the size standard and the
requirements under the RFP for the SEWP V Contract. On June 9, 2015, the government
supplemented the record with two documents related to Yorktel’s appeal before SBA-OHA
regarding the size standard for the SEWP V Contract. See generally Jt. Mot. to Supp. AR, June
8, 2015; Order, June 9, 2015. The government also corrected the administrative record by leave
of the Court with a System for Award Management report for Yorktel on that date. See
generally Def. Mot. to Correct AR, June 9, 2015; Order Granting Mot. to Correct, June 9, 2015.
Finally, on June 21, 2016, the government further supplemented the administrative record to
include the complete record of the size protest before the SBA-OHA. See Notice, June 21, 2016
Given this, adding the declaration of Ms. Feimster to the administrative record would run
afoul of the United States Court of Appeals for the Federal Circuit’s clear directive in Axiom that
this Court should not supplement the administrative record unless the omission of the
information “precludes effective judicial review.” Axiom Res. Mgmt., 564 F.3d 1380 (citation
omitted). And so, the Court denies the government’s motion to supplement.
B. The Court May Consider Yorktel’s Bid Protest Claim
The Court must also deny the government’s request to dismiss this bid protest matter,
because the Court may exercise its bid protest jurisdiction to consider Yorktel’s claim under 28
U.S.C. § 1491(b). Section 1491(b) provides that this Court may consider a bid protest claim
brought by an “interested party” objecting to, among other things, “any alleged violation of
statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1); see also Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 n.1 (Fed. Cir.
2008) (“A non-frivolous allegation of a statutory or regulatory violation in connection with a
15
procurement or proposed procurement is sufficient to establish jurisdiction.”). For the reasons
discussed below, Yorktel satisfies these statutory prerequisites.
1. Yorktel Alleges A Violation Of Procurement Law
First, the administrative record in this case makes clear that Yorktel alleges a violation of
a statute or regulation in connection with the procurement for the SEWP V Contract. In
particular, Yorktel alleges in the complaint and in its motion for judgment upon the
administrative record that NASA’s determination that Yorktel is ineligible for award of the
SEWP V Contract violates the Competition in Contracting Act, 10 U.S.C. § 2305(b)(1), section
15.305(a) of the FAR, and the statutory non-manufacturer rule, 15 U.S.C. § 637(a)(17). Compl.
at ¶¶ 1-2; Pl. Mot. at 1-2. And so, Yorktel has satisfied section 1491(b)’s requirements that it
allege a “violation of statute or regulation in connection with a procurement.” 28 U.S.C.
§ 1491(b)(1); see also RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1288-89 (Fed.
Cir. 1999).
Moreover, contrary to the government’s contentions in its motion to dismiss, the fact that
Yorktel is a contract awardee does not necessarily preclude Yorktel from pursuing its bid protest
claim. As this Court recently recognized in National Air Cargo Group v. United States, the
Federal Circuit has rejected the view that contract awardees are barred from filing bid protests
and may only pursue a claim against the government pursuant to the Contract Disputes Act
(“CDA”). 126 Fed. Cl. at 290 (discussing Sys. App. & Techs., Inc., 691 F.3d at 1381). In this
regard, the Federal Circuit held in Systems Application & Technologies, Inc. v. United States that
a contract awardee’s claims are not necessarily CDA claims and that a protestor’s status as a
contract awardee is not germane to the question of this Court’s jurisdiction. 691 F.3d at 1381-82
(stating “[i]n this case, the Army had not yet implemented corrective action. Moreover, SA–
TECH was the contract awardee. Neither of these facts are material to the question of
jurisdiction.”). And so, the Federal Circuit concluded in that case that the contract awardee’s
attempt to enjoin the government from terminating its contract did not transform an otherwise
proper protest under the Tucker Act into a claim which could only be adjudicated under the
Contract Disputes Act. Id.
Yorktel’s bid protest claim here−like the claims in Systems Application and National Air
Cargo−arises from an alleged violation of procurement law, and not from a breach of Yorktel’s
16
contract with the government. Nat’l Air Cargo Grp., 126 Fed. Cl. at 291 (holding that “a
contract awardee will fail to make a claim within this [C]ourt’s bid protest jurisdiction under
Paragraph 1491(b)(1) if the claim is one for breach of its own contract. Such a claim would be a
CDA claim, not a bid protest.”); cf. Coast Prof'l, Inc. v. United States, 828 F.3d 1349, 1355 (Fed.
Cir. 2016). Such a claim is not a CDA claim. And so, the Court may consider this claim under
the Tucker Act. See 28 U.S.C. § 1491(b).
2. Yorktel Has Standing To Bring Its Claim
The record evidence in this matter also shows that Yorktel is an “interested party” with
standing to bring this bid protest case. See AR at 2310. Although the Tucker Act does not
define the term “interested party,” the Federal Circuit has held that an “interested party” is an
“actual or prospective bidder or offeror whose direct economic interest would be affected by the
award of the contract or failure to award the contract.” Am. Fed. of Gov. Employees, AFL-CIO v.
United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001); see also 31 U.S.C. §§ 3551-56. To
establish a direct economic interest in a post-award bid protest matter, a protestor must show that
it had a substantial chance of receiving the award for the contract. See Orion Tech., Inc. v.
United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). This test is not, however, the only test that
the Court may employ to ascertain a direct economic interest. See Weeks Marine, Inc., 575 F.3d
at 1361-62. “Rather, ‘[a] protest will, by its nature, dictate the necessary factors for a ‘direct
economic interest.’” Nat’l Air Cargo Grp., 126 Fed. Cl. at 293 (quoting Sys. App. & Techs., Inc,
691 F.3d at 1382) (brackets existing).
Here, there is no dispute that Yorktel is an “actual offeror” and that Yorktel has been
awarded the SEWP V Contract. See AR at 1184-808, 2150-294. The government also
acknowledges in its briefs that Yorktel would have standing to bring this bid protest matter if the
SBA’s Office of Hearings and Appeals determined that Yorktel is not a small business for
purposes of the SEWP V Contract, thereby requiring NASA to terminate Yorktel’s contract. AR
at 2620-30; see Def. Reply at 6; see also Def. Mot. at 15 (“If OHA determines that Yorktel does
not meet the required minimum size standard and recommends the termination of Yorktel’s
contract, only then could Yorktel attempt to file a bid protest. . . .”). That is precisely the
circumstance presented here. On May 18, 2016, the SBA-OHA issued a decision finding that
17
Yorktel is not an eligible small business for the SEWP V Contract. AR at 2620-30. And so,
there is no genuine dispute that Yorktel has standing.
Yorktel has also demonstrated that it has a direct economic interest in this procurement.
See AR at 1184-808. If NASA terminates Yorktel’s contract, Yorktel will no longer be eligible
to compete for work orders issued under the SEWP V Contract. See, e.g. id. at 2307, 2310.
Given this, the specific nature of this bid protest shows that Yorktel has a direct economic
interest in the award of the SEWP V Contract and in NASA’s anticipated termination of that
contract.4 And so, Yorktel is an “interested party” with standing to pursue this bid protest
matter.
C. Yorktel’s Has Waived Its Challenge To The RFP’s Size Standard
While Yorktel has established jurisdiction and that it has standing to pursue its bid protest
claim, the administrative record in this matter, nonetheless, demonstrates that the Court must
dismiss this matter because Yorktel’s claim is untimely. This Court has long recognized that an
offeror wishing to challenge the terms of a solicitation must do so before offers are due. Blue &
Gold Fleet, 492 F.3d at 1313-15 (holding that a protester who knew the agency’s interpretation
of a solicitation but failed to challenge it before bids were due, waived its ability to object
afterwards). It is also well established that when a solicitation contains a patent ambiguity, an
offeror must bring the error to the attention of the contracting officer prior to the close of the
procurement process, or otherwise waive the ability to pursue the claim in this Court. Id. And
so, Yorktel may not challenge an alleged error or patent ambiguity in the RFP for the SEWP V
Contract here, if it failed to raise this error or ambiguity during the procurement process. Id.
In this case, the administrative record shows that Yorktel waived the ability to pursue its
challenge to the size standard for the SEWP V Contract because it did not raise the patent
ambiguity in the RFP regarding the size standard for the RFP before the close of the procurement
process. First, the administrative record makes clear that NASA addressed and attempted to
4
Yorktel also meets the pre-award bid protest standard for direct economic interest–“a non-trivial
competitive injury which can be redressed by judicial relief.” Weeks Marine, Inc. v. United States, 575
F.3d 1352, 1363 (Fed. Cir. 2009). Specifically, if its contract is terminated, Yorktel will suffer a non-
trivial competitive injury, because Yorktel will be unable to submit offers on orders issued under the
contract. See AR at 2307, 2310.
18
clarify the RFP’s size standard requirement in the agency’s responses to several questions from
offerors about the size standard for the SEWP V Contract. In this regard, the record evidence
shows that NASA responded to several questions about the size standard for the SEWP V
Contract during the question-and-answer phase of the procurement. AR at 975-1183. For
example, in response to question 511 regarding the size standard for the subject contract, NASA
replied that the proper size standard for the SEWP V Contract was 150 employees. Id. at 1069.
In response to question 861, NASA also clarified that the size standard for the contract was 150
employees and that businesses with more than 150 employees would be considered “other than
small” and would need to complete a small business subcontracting plan to remain eligible for
award. Id. at 1123. NASA further clarified in response to other questions that the size standard
for the contract is 150 employees. Id. at 1139, 1144, 1156. The record evidence also shows that
NASA published these questions and answers on a website for the SEWP V procurement and
that this information was readily available to all offerors, including Yorktel. See AR at 2.
The record evidence also shows that NASA amended the RFP to incorporate the agency’s
responses to the aforementioned questions into the RFP’s size standard requirement. In this
regard, this Court has long recognized that agency responses during the question-and-answer
process, “when circulated to all offerors as an attachment to an amendment signed by the
contracting officer, constitute an amendment of the solicitation.” Bayfirst Solutions, LLC v.
United States, 102 Fed. Cl. 677, 689 n.15 (2012) (citing Scientific Research Corp., B-260478,
1995 WL 404157, at *5 (Comp. Gen. July 10, 1995)). In this case, the administrative record
shows that three amendments to the RFP−Amendments 7, 8, and 10−were circulated to offerors
and that these amendments were also accompanied by a cover letter that includes the link to the
website that contained the questions and answers regarding the size standard for the SEWP V
Contract.5 See AR at 265-66, 465-66, 631-32, 802. In addition, these cover letters have been
5
The cover letter to RFP Amendment 7 specifically provides that “[p]lease note that Set #5 Answers to
RFP questions are located at the following website: [website link]. Id. at 466; see also id. at 265 and 631
(similar language in the cover letters to Amendment 10 and 8). The cover letter to RFP Amendment 7
also provides that “[p]otential Offerors are requested to periodically monitor the website for updates.” Id.
at 466; see also id. at 265 (same language in cover letter to Amendment 10), 631 (same language in cover
letter to Amendment 8). Also relevant here, the cover letters for RFP Amendments 7, 8, and 10 notified
offerors that “[a]ll of the documents related to this procurement, including this letter, the solicitation,
attachments, and any amendments will be obtainable electronically.” Id. at 266, 466, 631.
19
signed by the contracting officer and the amendment attached to each letter has also been signed
by the contracting officer. Id. at 266-67, 466-67, 632-33, 803-04. And so, the evidence in the
record demonstrates that NASA amended the RFP to incorporate the agency’s responses to
questions about the size standard. Bayfirst Solutions, 102 Fed. Cl. at 689 n.15 (citing Scientific
Research Corp., B-260478, 1995 WL 404157, at *5 (Comp. Gen. July 10, 1995)).
The record evidence also shows that NASA’s responses to questions about the
size standard for the SEWP V Contract created a patent ambiguity in the RFP. In this
regard, the RFP provides that:
The NAICS code and small business size standard for this acquisition appear in
Block 10 of the solicitation cover sheet (SF 1449). However, the small business
size standard for a concern which submits an offer in its own name, but which
proposes to furnish an item which it did not itself manufacture, is 500 employees.
AR at 130; see 48 C.F.R. § 52.212-1. NASA, however, clarified in the agency’s responses to
questions regarding the size standard for the SEWP V Contract that the size standard is 150
employees. AR at 1069, 1123, 1139, 1144, 1156. These responses created an ambiguity about
the size standard for the RFP that should have been evident to Yorktel and to other offerors. As
the Government Accountability Office has recognized, the responsibility is on the offeror to seek
clarification or challenge the patent ambiguity where amendments made through the question-
and-answer process create an inconsistency with other solicitation terms. Linguistics Systems,
Inc., B-296221, 2005 CPD ¶ 104, 2005 WL 1299516, at *1 (Comp. Gen. June 1, 2005). Yorktel
had the obligation in this case to raise the patent ambiguity in the RFP regarding the appropriate
size standard before the end of the procurement process. See Blue & Gold Fleet, 492 F.3d at
1313; see Pyramid Real Estate Servs., LLC v. United States, 95 Fed. Cl. 125, 137 n.16 (2010)
(rejecting an offeror’s protest because it failed to raise concerns about the solicitation during the
proposal process despite the contracting agency’s answers and amendments to related
provisions). Because it is without dispute that Yorktel did not do so here, Yorktel’s claim
challenging this size standard is untimely.6 See Pl. Reply at 15-16; Blue & Gold Fleet, 492 F.3d
at 1313.
6
The government also argues in its motion to dismiss that plaintiff has failed to exhaust its administrative
remedies because the matter is pending before SBA-OHA. See Def. Mot. at 16; RCFC 12(b)(6). Because
20
D. Yorktel’s Claim Is Unsupported By The RFP And Applicable Law
It is also important to note that, even if Yorktel could pursue its challenge of the size
standard for the SEWP V Contract in this litigation, this claim is unsupported by the terms of the
RFP and the statutory non-manufacturer rule. As discussed above, Yorktel maintains in this
matter that the RFP provides for a 500-employee size standard for non-manufacturers,
notwithstanding the lower 150-employee size standard imposed by the NAICS code for this
procurement. See, e.g., Pl. Mot. at 1. Yorktel further maintains that it is a non-manufacturer and
meets the 500-employee size standard and, thus, is eligible for award of the contract. Yorktel’s
contentions are, however, belied by the plain language in the RFP and applicable law.
As an initial matter, the RFP does not provide for a 500-employee size standard for non-
manufacturers. The RFP provides that:
(a) North American Industry Classification System (NAICS) code and small
business size standard. The NAICS code and small business size standard for this
acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However,
the small business size standard for a concern which submits an offer in its own
name, but which proposes to furnish an item which it did not itself manufacture, is
500 employees.
AR at 130; see 48 C.F.R. § 52.212-1. While this provision is, perhaps, inartfully drafted, the
Court reads the language in the first sentence of this provision, which states that “[t]he NAICS
code and small business size standard for this acquisition appear in Block 10 of the solicitation
cover sheet,” to require that all offerors comply with the size standard imposed by this NAICS
code. It is undisputed that the second sentence in this provision pertains to non-manufacturers.
See Pl. Mot. at 9; Def. Mot. at 24. And so, the Court reads the second sentence in the provision
to further require that offerors who are non-manufacturers also satisfy a size standard of 500 or
less employees, to be eligible to compete for the contract.
When read in its entirety, the Court construes the above provision to require that a non-
manufacturer first meet the 500 employees or less size standard to compete for the contract and
to also impose the more restrictive size standard of 150 employees or less under the NAICS code
the size protest before SBA-OHA has concluded, the Court finds that this issue is now moot. See AR at
2620-30.
21
in order for the non-manufacturer to be eligible for contract award.7 And so, to the extent that
Yorktel qualifies as non-manufacturer under the statutory non-manufacturer rule, the RFP
requires that Yorktel meet the more restrictive, 150-employee, size standard to be eligible for
contract award. AR at 4
This interpretation of the RFP’s size standard is reinforced by the plain language of the
statutory non-manufacturer rule. 15 U.S.C. § 637(a)(17). That rule provides, in relevant part,
that:
(B) To be in compliance with the requirements [of the non-manufacturers rule],
such a business concern shall— . . .
(ii) be a small business concern under the numerical size standard for the
Standard Industrial Classification Code assigned to the contract
solicitation on which the offer is being made;
15 U.S.C. § 637(a)(17) (emphasis supplied); see Size Appeal of OSC Solutions, Inc., No. SIZ-
5253, 2011 WL 2520006, *67 (OHA June 23, 2011). The statutory non-manufacturer rule, thus,
requires that an offeror seeking coverage under the rule satisfy the size standard imposed by the
NAICS code for the relevant contract. 15 U.S.C. § 637(a)(17).
In this case, it is without dispute that Yorktel does not satisfy the 150-employee size
standard under the NAICS code for the SEWP V Contract. Pl. Mot. at 5. And so, Yorktel’s
claim that the NASA erred in finding it ineligible for award of the SEWP V Contract here is
without merit.
E. Injunctive Relief Is Inappropriate
Given the jurisdictional and substantive deficiencies in Yorktel’s bid protest claim
discussed above, Yorktel also fails to demonstrate that it is entitled to the injunctive relief that it
seeks in this matter. As discussed above, Yorktel’s challenge of the size standard for the SEWP
V Contract is untimely and it is also unsupported by the RFP and applicable law. And so, where,
as is the case here, the evidence demonstrates that a protestor will not succeed upon the merits of
7
Given this, where the size standard imposed by the NAICS code is less than 500 employees−as is the
case here−a non-manufacturer must satisfy the more restrictive size standard imposed by the NAICS code
to be eligible for contract award. On the other hand, where the size standard for the applicable NAICS
code exceeds 500 employees, a non-manufacturer would have to meet the more restrictive 500-employee
size standard to be eligible for contract award.
22
its claim, Yorktel cannot prevail upon its claim for injunctive relief. Cf. Altana Pharma AG v.
Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com, Inc. v.
Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001)) (“Although the factors are not
applied mechanically, a movant must establish the existence of both of the first two factors to be
entitled to a preliminary injunction” or a temporary restraining order); Nat’l Steel Car, Ltd., 357
F.3d at 1325 (finding that a plaintiff who cannot demonstrate likely success upon the merits
cannot prevail upon its motion for preliminary injunctive relief).
V. CONCLUSION
In sum, while the Court may generally consider this matter under its bid protest
jurisdiction under the Tucker Act, Yorktel has waived its challenge to the size standard for the
SEWP V Contract by failing to raise this claim before the end of the procurement process. The
RFP and applicable law also do not support Yorktel’s claim in this case. In addition,
supplementation of the administrative record with the declaration of the contracting officer for
the procurement at issue is not necessary for meaningful judicial review of this matter.
And so, for the foregoing reasons, the Court:
1. GRANTS-IN-PART the government’s motion to dismiss;
2. GRANTS the government’s motion for judgment upon the administrative record;
3. DENIES plaintiff’s motion for judgment upon the administrative record; and
4. DENIES the government’s motion to supplement the administrative record with the
Feimster Declaration.
The Clerk shall enter judgment accordingly.
Each party shall bear their own costs.
Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on May
14, 2015. This Memorandum Opinion and Order shall therefore be filed under seal. The parties
shall review the Memorandum Opinion and Order to determine whether, in their view, any
information should be redacted in accordance with the terms of the Protective Order prior to
publication.
23
The Court hereby ORDERS the parties to FILE, by February 1, 2017, a joint status
report identifying the information, if any, that they contend should be redacted, together with an
explanation of the basis for each proposed redaction.
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge