Aircraft Charter Solutions, Inc. v. United States ( 2013 )

In the United States Court of Federal Claims
No. 13-9 C
(Filed March 8, 2013)1
* * * * * * * * * * * * * * * * *
AIRCRAFT CHARTER *
SOLUTIONS, INC., *
*
Plaintiff, *
*
v. * Post-Award Bid Protest;
* Cardinal Change Doctrine;
THE UNITED STATES, * Whether an Out-of-Scope
* Modification of the Awardee’s
Defendant, * Contract Occurred; Laches.
*
DYNCORP INTERNATIONAL LLC, *
*
Intervenor-Defendant. *
* * * * * * * * * * * * * * * * *
David T. Ralston, Jr., Washington, DC, for plaintiff. Frank S. Murray and
Steven C. Lambert, Washington, DC, of counsel.
Daniel Rabinowitz, United States Department of Justice, with whom were
Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, Steven J. Gillingham, Assistant Director, Washington, DC, for
defendant. Kathleen D. Martin, United States Department of State, Washington,
DC, of counsel.
1
/ This opinion was issued under seal on January 31, 2013. Pursuant to ¶ 8 of the
ordering language, the parties were invited to identify source selection, proprietary or
confidential material subject to deletion on the basis that the material was protected/privileged.
One such redaction was proposed. Brackets ([ ]) identify the redacted portion of this opinion.
David M. Nadler, Washington, DC, for intervenor-defendant. Scott Arnold
and Erin Wilcox Burns, of counsel.
________________________________
OPINION AND ORDER
________________________________
Bush, Judge.
Plaintiff Aircraft Charter Solutions, Inc. (ACS) filed its post-award bid
protest complaint and requests for injunctive relief on January 4, 2013. In its
complaint, plaintiff asserted that the Department of State (State) has effected an
out-of-scope modification of S-AQMPD-05-C-1103 (State Contract), a contract
awarded to DynCorp International LLC (DynCorp) in 2005. DynCorp has
intervened in this suit. In this protest, ACS asserts that State is currently ordering
“commercial air transportation of passengers and cargo within Afghanistan” from
DynCorp under the State Contract, Compl. ¶ 82, in violation of procurement law.
ACS asks that the court enjoin this conduct.
The procedural posture of this litigation has been something of a
fast-moving target, and requires a brief explanation. The complaint requested four
types of relief. The first three types of relief – a preliminary injunction, a
permanent injunction, and a declaratory judgment – were focused on preventing
DynCorp from providing State with air transportation, of a general nature, of
passengers and cargo in Afghanistan. See Compl. at 1, 31. The fourth type of
requested relief was the entry of an order directing the United States to instead
purchase such services, for a time, from ACS. Id. at 1-2, 31. The complaint was
also accompanied by two motions of relevance here: a motion for the entry of a
temporary restraining order (TRO) and a motion for the entry of a preliminary
injunction.
Plaintiff’s counsel, in the initial scheduling conference held by the court,
noted that after January 31, 2013, ACS would no longer have a valid contract with
the United States Agency for International Development (USAID) for air
passenger and cargo services in Afghanistan. Thus, counsel reasoned, the factors
to be considered for a TRO or a preliminary injunction would be fundamentally
2
altered after that date. The court inquired whether the government could maintain
the status quo by extending the USAID contract during the pendency of this
protest, but defendant’s counsel stated that the government would not do so. The
court noted that plaintiff’s TRO and preliminary injunction motions could not be
decided without briefing of the complex issues presented therein.
The court imposed an expedited briefing schedule utilizing cross-motions for
judgment of the administrative record to decide plaintiff’s requests for a TRO and
a preliminary injunction by January 31, 2013, the termination date of ACS’s
contract with USAID. The scheduling order permitted the parties to focus
primarily on plaintiff’s requests for a TRO and a preliminary injunction. See
Scheduling Order of Jan. 8, 2013, at 2-3. That order also denied plaintiff’s TRO
motion and its preliminary injunction motion as moot, noting that “plaintiff’s
motion for judgment on the administrative record will argue for a TRO and a
preliminary injunction.” Id.
The administrative record (AR) of this procurement was filed on January 10,
2013, and a minor correction to the AR was filed on January 14, 2013. In its
motion for judgment on the administrative record, plaintiff did not renew its
request for a TRO. With the passage of time, plaintiff also abandoned its request
that the court direct the United States to purchase air passenger and cargo services
in Afghanistan from ACS. See Oral Argument Recording (OA Rec.) at 1:13 PM.
Instead, plaintiff primarily seeks a preliminary injunction and a permanent
injunction of performance of a portion of the State Contract, and continues to press
for a declaratory judgment that an out-of-scope modification of the State Contract
occurred. Pl.’s Mot. at 1. The briefing submitted by plaintiff and by defendant
fully addresses plaintiff’s requests for preliminary and permanent injunctive relief,
as well as the merits of plaintiff’s request for a declaratory judgment. See Pl.’s
Mot. at 1-2, 57, 59-67; Def.’s Mot. at 1-2, 25-36; Pl.’s Reply at 30.
Thus, the record now before the court permits a resolution of the merits of
this protest and plaintiff’s requests for injunctive relief. Oral argument was held
on January 25, 2013. As discussed below, plaintiff has not prevailed on the merits
of its protest, and plaintiff has not shown that injunctive relief should issue.
Defendant’s and intervenor-defendant’s motions for judgment on the
administrative record are therefore granted, and plaintiff’s motion for judgment on
the administrative record is denied.
3
BACKGROUND
I. The Solicitation
The solicitation for the State Contract was formally issued on December 9,
2003, as Solicitation No. S-LMAQM-03-R-0008 (Solicitation). AR at 1, 210;
Def.’s Mot. App. B ¶ 5. The contract services were categorized as “[p]rofessional,
administrative, and management support services,” with the title “[International
Narcotics and Law Enforcement Affairs (INL)] Counter-Narcotics Aviation
Support Services.” AR at 210. Because this protest focuses, in large part, on the
expectations of bidders responding to the Solicitation, the court reproduces here
the full description of the proposed contract that was provided in a synopsis posted
on the FedBizOpps website:
The U.S. Department of State Bureau for International
Narcotics and Law Enforcement Affairs, Office of
Aviation (INL/A) is soliciting offerors to provide
aviation support services. INL/A is primarily responsible
for supporting the U.S. Embassy Country Teams,
generally through the Narcotics Affairs Section (NAS) of
each embassy, in their effort to assist host nation
governments in the eradication and interdiction of illicit
crops such as marijuana, coca and opium poppy as
mandated in the Foreign Assistance Act. Secondary
missions include pipeline security, border patrol, and
other related activities. The missions are accomplished
via the use of fixed wing and rotary aircraft, and are
performed in overseas nations in an environment that at
times may be extremely hostile and somewhat austere.
These operations are currently performed in Colombia,
Bolivia, Peru, and Pakistan, and are anticipated in
Mexico and Afghanistan in the near future. The contract
will provide all necessary operations and support of this
INL/A mission for an initial transition period of up to six
months, and a performance period that could extend to 10
years provided the contractor meets performance
4
incentives provided in the associated award term
provision. The anticipated annual contract value is
approximately $170M, but could vary greatly depending
upon how the mission evolves over the performance
period. Specific program objectives include: 1. Illicit
crop eradication: The contractor will be responsible for
both aerial eradication and support for host nation
manual eradication of illicit drug crops in designated
countries, as well as the interdiction of illicit drug
production and trafficking. The contractor will be wholly
responsible for aerial eradication, while providing
aviation services in support of host nation personnel for
the manual eradication and interdiction missions. 2.
Aircraft availability: The contractor will provide all
necessary logistics and maintenance services to ensure
that aircraft are available to perform the many varied
tasks as required by local U. S. Embassy Narcotics
Affairs Section (NAS) officials. The goal is to provide a
lean logistics support system that uses state-of-the-art
business practices and streamlined processes that
minimize infrastructure requirements in all fields of
operation. 3. Training: While host nation personnel
should be qualified to perform the required missions, the
contractor is responsible for identifying deficiencies and
working with the US Government and host nation
representatives to develop training programs to rectify
any shortfalls. The ultimate goal is to transition all
specified mission requirements to host nation personnel
at the earliest date possible. 4. Flexibility: Due to the
evolving nature of the mission, the contractor must be
able to react to changing conditions quickly, with
minimal impact to steady state operations. Contract
Objectives: All requirements of the Technical
Requirements Document must be met. The government
is interested in a best value approach that can provide all
necessary services efficiently and safely. While there are
inherent dangers in counter narcotics activities, every
5
effort should be made to ensure that operations are
conducted in accordance with proven industry and/or
government standards.
Id. The court reserves a detailed examination of relevant Solicitation terms for the
Analysis section of this opinion.
The Solicitation was amended several times, with technical updates and bid
submission deadline enlargements not relevant here. The security clearance
requirements for contractor personnel were revised. See AR at 212-13. State
announced plans to hold an “industry day with prospective aviation support service
contractors” and their insurers to address issues with the third-person liability
insurance requirements of the contract. Id. at 1634. Offers were due, per the final
Solicitation amendment, by January 11, 2005. Id. at 1642.
II. DynCorp’s State Contract
DynCorp was awarded the State Contract (S-AQMPD-05-C-1103) on May
6, 2005, which, including a six-month transition period, has a potential
performance period of ten and a half years. AR at 1643, 1705. The State Contract
does not differ significantly from the Solicitation.2 The foreign countries identified
as locations for the delivery of specific services under the contract, as of May 6,
2005, were Colombia, Peru, Bolivia and Pakistan. Id. at 1687-1701, 1704, 1706-
07. The court reserves further discussion of specific provisions of the State
Contract for the Analysis section of this opinion.
III. Contract Modifications Relevant to Services Rendered in Afghanistan
The State Contract was soon modified to include Afghanistan operations. In
Modification 012 (Mod 12), effective June 28, 2006, funding for the contract was
increased and “Afghanistan operations” were added to the contract schedule. AR
at 1841. These operations were labeled “Airlift support of INL Counter Drug
2
/ Plaintiff points to the Statement of Work (SOW) of the State Contract as reflecting an
interpretation of the Solicitation’s requirements by DynCorp and State which is necessarily not
identical to the Solicitation itself. Pl.’s Mot. at 15-16 & nn.5-6. In the court’s view, the terms of
the SOW noted by plaintiff are not indicative of substantial differences between the Solicitation
and the State Contract.
6
programs in Afghanistan.” Id. at 1845. This was to be a two-pronged effort,
according to the statement of work. On the one hand, DynCorp was to provide
helicopter support for opium poppy crop eradication efforts; on the other hand,
DynCorp was to perform “airlift” support of counter-narcotics programs and
“various programs of US national interest” in Afghanistan. Id.
The focus of this protest is on the modification of the State Contract to
include “airlift support of cargo and passenger movement throughout Afghanistan
7 days a week,” where these air transport services were no longer restricted to
counter-narcotics programs. AR at 1846. In 2006, State estimated that each month
in Afghanistan DynCorp would be moving 2000 passengers and 90,000 pounds of
cargo, on average. Id. at 1899. Mod 12 will be discussed in more detail in the
Analysis section of this opinion.
Other modifications of the State Contract which might be relevant here
include, for example, the addition of Guatemala operations, in 2006. AR at 1904-
07. In 2008, the contract added a DC-3 aircraft for DynCorp’s Afghanistan
operations. Id. at 1916-17. In 2009, an additional 286 passengers involved in the
training of Afghan police officers required airlift services, and these services were
added to the State Contract. Id. at 2170-72. In 2010, three more aircraft were
required for DynCorp’s Afghanistan operations, along with additional
infrastructure to support passenger operations. Id. Tabs 16-17. In 2011, eight
helicopters were added to the contract for DynCorp’s Afghanistan operations. AR
Tab 19. Also in 2011, the State Contract added Iraq operations, which included
medical evacuation operations using six specially-equipped aircraft provided by
State, id. at 1968, 1977-80, and “Diplomatic Security High Threat Protection”
services, id. at 1984-86.
Effective May 9, 2012, a new contract number (S-AQMMA-12-C-1103) was
assigned to the State Contract, due to the passage of time and accounting system
requirements. AR at 2120, 2134. Later in 2012, the State Contract funded
construction of changes to “Camp Alvarado,” a United States government facility
at the international airport in Kabul. Id. at 2135. Recently, in September 2012, the
State Contract was modified to add additional aircraft for DynCorp’s Afghanistan
7
operations. Id. at 2169. The State Contract continues to be performed by
DynCorp, and may be extended into 2015 or 2016.3
IV. ACS’s USAID Contract
The United States Agency for International Development (USAID) and ACS
entered into a contract, 306-C-00-10-00510-00 (USAID Contract) on January 5,
2010. AR Tab 22. The USAID Contract is for “[a]ir passenger service and
aircraft/flight operations management” in Afghanistan. Id. at 1999. The base
period of the contract was from February 1, 2010 through January 31, 2012. Id. at
2004-05. The contract includes three option years, the first of which has been
exercised. Id. at 2009-11, 2108-09.
The USAID Contract has been modified many times, sometimes changing
the size or number of aircraft required for contract services. See, e.g., AR Tabs 23-
25, 28, 32-33. These modifications reflect changes in the management of
passenger services provided by the United States government in Afghanistan.
Other modifications to the USAID Contract similarly reflect changes in passenger
services provided by the United States government in Afghanistan. See, e.g., id. at
2100 (changing the name of air services referenced in the contract from “USAID
Air” to “Embassy Air,” and changing the contract requirements for passenger
ground transportation vehicles); id. at 2103-05 (changing the terminal for Embassy
Air at Kabul International Airport from “Ramp C” to “Camp Alvarado”). ACS
was informed on December 4, 2012 that the remaining two option years of its
contract, which might have prolonged the USAID Contract through January 31,
2015, would not be exercised by USAID. Pl.’s Mot. at 35. With less than a month
of performance remaining on its USAID Contract, ACS filed its bid protest in this
court on January 4, 2013.
DISCUSSION
I. Bid Protest Jurisdiction
3
/ Although, under the “Period of Performance” provision, it would appear that the State
Contract, including option years, expires no later than November 5, 2015, there is also a contract
provision, “Option to Extend Services,” which appears to permit services to continue six months
beyond that date. AR at 1705, 1740.
8
This court “shall have jurisdiction to render judgment on an action by an
interested party objecting to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a
proposed procurement.” 28 U.S.C. § 1491(b)(1) (2006). The jurisdictional grant is
“without regard to whether suit is instituted before or after the contract is
awarded.” Id. As a threshold jurisdictional matter, however, the plaintiff in a bid
protest must show that it has standing to bring the suit. Info. Tech. & Applications
Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (ITAC); Myers
Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir.
2002) (citation omitted).
II. Standard of Review for Judgment on the Administrative Record
Rule 52.1(c) of the Rules of the United States Court of Federal Claims
(RCFC) provides for judgment on the administrative record. To review a motion,
or cross-motions, under RCFC 52.1(c), the court asks whether, given all the
disputed and undisputed facts, a party has met its burden of proof based on the
evidence in the record. Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57
(Fed. Cir. 2005) (Bannum II). The court must make factual findings where
necessary. Id. The resolution of RCFC 52.1(c) cross-motions is akin to an
expedited trial on the paper record. Id.III. Bid Protest Review
The court first examines whether the plaintiff in a bid protest has standing to
bring the suit. ITAC, 316 F.3d at 1319. Standing arises from prejudice, which is
present if the plaintiff establishes that it is an interested party with a direct
economic interest in the procurement. Id. (citing Am. Fed’n of Gov’t Employees v.
United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (AFGE)). Bid protest
standing is limited to those plaintiffs who are “‘actual or prospective bidders or
offerors whose direct economic interest would be affected by the award of the
contract or by the failure to award the contract.’” Weeks Marine, Inc. v. United
States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (quoting AFGE, 258 F.3d at 1302).
In the context of a post-award protest, the protestor must show that it has or had a
substantial chance of winning the contract requirement but for the errors in the
9
procurement. See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307-08 (Fed.
Cir. 2006) (citing Myers, 275 F.3d at 1369-70).
As the United States Court of Appeals for the Federal Circuit has stated, “the
proper standard to be applied in bid protest cases is provided by 5 U.S.C. §
706(2)(A) [(2006)]: a reviewing court shall set aside the agency action if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed. Cir.
2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-
58 (Fed. Cir. 2000)). Under this standard, a procurement decision may be set aside
if it lacked a rational basis or if the agency’s decision-making involved a clear and
prejudicial violation of statute, regulation or procedure. Emery Worldwide
Airlines, Inc. v. United States, 264 F.3d 1071, 1085-86 (Fed. Cir. 2001) (citing
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332-33 (Fed. Cir. 2001)). “The arbitrary and capricious standard applicable [in
bid protests] is highly deferential.” Advanced Data Concepts, 216 F.3d at 1058.
De minimis errors in the procurement process do not justify relief.
Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996) (citing
Andersen Consulting v. United States, 959 F.2d 929, 932-33, 935 (Fed. Cir. 1992)).
The bid protest plaintiff bears the burden of proving that a significant error marred
the procurement in question. Id. (citing CACI Field Servs., Inc. v. United States,
854 F.2d 464, 466 (Fed. Cir. 1988)). Examples of arbitrary and capricious agency
action include “when the agency ‘entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or [the decision] is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.’” 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)) (alteration in original). The court will, however, “uphold a decision of
less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)
(citation omitted).
“‘If the court finds 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 as to the proper administration and application of the
10
procurement regulations.’” Honeywell, Inc. v. United States, 870 F.2d 644, 648
(Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301
(D.C. Cir. 1971)). If, on the other hand, “the trial court determines [that] the
government acted without rational basis or contrary to law when evaluating the
bids and awarding the contract [requirement,] . . . it proceeds to determine, as a
factual matter, if the bid protester was prejudiced by that conduct.” Bannum II,
404 F.3d at 1351. Plaintiff again bears the burden of proof. Id. at 1358.
“Prejudice is a question of fact.” Id. at 1353 (citing Advanced Data Concepts, 216
F.3d at 1057).
IV. Standing
Only a plaintiff possessing a substantial chance of winning a contract for the
services that are the subject of its bid protest has standing before this court. Rex
Service, 448 F.3d at 1307-08. Although neither defendant nor DynCorp challenges
ACS’s standing to bring this protest, standing is a threshold inquiry that the court
must address. ITAC, 316 F.3d at 1319. Here, ACS is a contractor currently
providing air passenger service in Afghanistan. Should the court enjoin State from
purchasing certain airlift services from DynCorp because these are deemed to be
out-of-scope of the State Contract, ACS has a substantial chance of receiving a
contract for at least some of these airlift services in Afghanistan.4 For this reason,
ACS has standing to bring this bid protest.
V. Laches
The record shows that DynCorp has been providing airlift services in
Afghanistan since 2006. See AR Tab 9; Milstead Decl. ¶ 3. ACS, through an
affiliate, has been providing air transportation for USAID in Afghanistan since
4
/ The court acknowledges that there are alternatives to an award of a contract to ACS
should an injunction issue. State contemplates, for example, the award of a sole-source contract
to DynCorp, should the court grant any of plaintiff’s requests for injunctive relief. See Def.’s
Mot Ex. A ¶ 16. This contingency plan of the government, however, does not deny ACS
standing to bring this protest. In the court’s view, ACS has a greater than insubstantial chance of
obtaining a contract for passenger transport in Afghanistan if it prevails in this protest. See
ITAC, 316 F.3d at 1319 (holding that the plaintiff in that case had standing “because it had
greater than an insubstantial chance of securing the contract if successful on the merits of the bid
protest”).
11
2004. Reid 1st Decl. ¶¶ 8-9. Although the record does not establish the earliest
date that ACS was aware that DynCorp was providing passenger service for State
in Afghanistan, there is no real debate that ACS has known for approximately three
years about DynCorp’s airlift services. See, e.g., OA Rec. at 1:22 PM, 1:35 PM-
1:40 PM; Reid 1st Decl. ¶¶ 12, 21; Pl.’s Reply at 4 n.1, 6-7; Def.’s Reply at 2-3.
As defendant notes, plaintiff has not explained why it waited three years to file this
protest.5 Defendant suggests, and the record confirms, that ACS waited until
USAID notified ACS on December 4, 2012 that the second option year available
under the USAID Contract would not be exercised, and then further delayed filing
this protest until January 4, 2013. This unreasonable delay, defendant argues,
constitutes laches and bars plaintiff’s bid protest.6 Def.’s Mot. at 9-15. The court
agrees.
This court does not frequently apply the doctrine of laches in the bid protest
context. See, e.g., CW Gov’t Travel, Inc. v. United States, 61 Fed. Cl. 559, 569
5
/ DynCorp, according to plaintiff’s own Embassy Air passenger load charts, already had
a substantial share in the passenger load of Embassy Air in Afghanistan by mid-2010. Pl.’s Ex.
6. A reasonable contractor could not have ignored this competition, and the potential for
pursuing relief through a bid protest action, as of June 2010. Thus, plaintiff has sat on its rights
for at least two and a half years. The court adopts three years, however, as an approximate
measure of the delay in the filing of this case, because Embassy Air services provided by
DynCorp are acknowledged by the parties to have begun, and to have been publicly known, no
later than 2009. See Def.’s Reply at 2-3; OA Rec. at 1:22 PM, 1:35 PM-1:40 PM.
6
/ Defendant has abandoned its argument that a bid protest filed in 2013 contesting the
legality of a contract modification issued in 2006 is barred by this court’s six-year statute of
limitations. Def.’s Reply at 2 n.1. Defendant’s abandonment of the statute of limitations issue
does not resolve the question, however. The court must determine its jurisdiction over a case
whenever it appears in doubt. E.g., Hambsch v. United States, 857 F.2d 763, 764-65 (Fed. Cir.
1988); Bayship Mgmt., Inc. v. United States, 43 Fed. Cl. 535, 536 (1999) (citations omitted).
Here, plaintiff bears the burden of establishing jurisdictional timeliness, and the burden of
establishing “accrual suspension” of its claim, by a preponderance of the evidence. See, e.g.,
Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (citing Martinez v. United States,
333 F.3d 1295, 1319 (Fed. Cir. 2003); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377
(Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189
(1936)); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citation
omitted). The expedited schedule of this protest, however, did not afford plaintiff the
opportunity to establish a record sufficient to prove or disprove accrual suspension; thus, on the
record currently before the court, and according all favorable inferences to the factual allegations
in plaintiff’s complaint, the court will not dismiss this case on statute of limitations grounds.
12
(2004) (CW Government) (stating that “we would be reluctant to invoke laches
except under extraordinary circumstances”). Plaintiffs’ bar recognizes, however,
that delay in filing a bid protest carries serious consequences. In some cases, delay
constitutes waiver by the plaintiff of a bid protest claim. See, e.g., Blue & Gold
Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007) (citing 28 U.S.C.
§ 1491(b)(3) (2006)). In others, delay by the plaintiff in filing a bid protest affects
the court’s weighing of injunctive relief factors. See, e.g., Elmendorf Support
Servs. Joint Venture v. United States, 105 Fed. Cl. 203, 212 (2012) (“Undue delay
is relevant in determining the extent to which it has magnified the harm to
defendant.”) (citations omitted). In a few cases, where delay is of an unacceptable
magnitude, the doctrine of laches may bar a bid protest. See, e.g., Reilly v. United
States, 104 Fed. Cl. 69, 78-80 (2012).
There is no doubt that the doctrine of laches may properly be invoked in the
bid protest context. Blue & Gold Fleet, 492 F.3d at 1314-15 (citing cases). There
is also no dispute that defendant, in this case, must demonstrate two elements to
establish laches: unreasonable delay on the part of the protestor and economic
prejudice to the government. See, e.g., Software Testing Solutions, Inc. v. United
States, 58 Fed. Cl. 533, 536 (2003) (citations omitted). In this case, although
plaintiff does not specifically concede unreasonable delay, plaintiff has wisely not
attempted to argue that a three-year delay in the filing of a bid protest is
reasonable.7 Pl.’s Reply at 3-4. The court finds that the government has met the
first prong of a successful laches defense. See CW Government, 61 Fed. Cl. at 569
(“In the context of a bid protest, 14 months is a lifetime.”).
Turning to the second prong of laches, that of economic prejudice, plaintiff
relies heavily, in its reply brief and at oral argument, on the fact that State may well
award a sole-source contract to DynCorp if an injunction of a portion of the State
Contract issues from this court (were plaintiff to prevail in this bid protest). Pl.’s
Reply at 5; OA Rec. at 2:08 PM. At oral argument, plaintiff expanded greatly on
its “no prejudice, thus no laches” construct, and made the following main points.8
7
/ Plaintiff’s arguments concerning the timeliness of its suit, Pl.’s Reply at 4 n.1, are
cursory and unpersuasive.
8
/ Plaintiff’s arguments regarding prejudice and laches which were first presented at oral
argument, and not earlier raised in its reply brief, have arguably been waived. See, e.g., Office
continue...
13
First, according to plaintiff, there is no delay-related prejudice to the United States,
because an earlier protest resulting in an injunction, in perhaps 2011 or 2012,
would have caused the same type and amount of economic prejudice as would a
protest and an injunction in 2013. OA Rec. at 1:59 PM. Second, State’s
investments in recent developments of DynCorp’s airlift support services would
not be lost, but could be transferred to an awardee in a new, competitive
procurement for these services. Id. at 2:00 PM-2:01 PM. Third, the type and
amount of injunction-related hardships the government might encounter go not to
laches, but to the balancing of the hardships prong of the factors to be considered
for injunctive relief. Id. at 2:06 PM. Finally, plaintiff contends that defendant’s
arguments that ACS has less capacity to fulfill the challenged portions of the State
Contract in 2013 than ACS would have had in previous years are vague and
unsubstantiated. Id. at 2:07 PM-2:08 PM.
Defendant, on the other hand, has pointed to specific, delay-related
economic prejudice that satisfies the second laches prong. For example, the
three-year delay in filing this protest parallels a three-year investment in
DynCorp’s airlift support services in Afghanistan – with additional planes
providing the clearest example of costs incurred by the government. Def.’s Mot. at
15. Defendant argues that such investments represent a “continual[] honing and
defining [of] the contours of Embassy Air.” Def.’s Reply at 4. At oral argument,
defendant asserted that it is costly and inefficient to now dismantle the last three
years of work devoted to the construction and maintenance of airlift support
services in Afghanistan using a specific contractor - DynCorp. OA Rec. at 2:31
PM-2:32 PM. The court must agree. It is not obvious to the court how a
competitive procurement, initiated three years later, could recover investments of
this nature and magnitude.
Furthermore, the administrative record strongly supports defendant’s
contention that State’s options for responding to a successful bid protest of
DynCorp’s airlift support services in Afghanistan are less attractive in 2013 than
8
/ ...continue
Depot, Inc. v. United States, 95 Fed. Cl. 517, 530-31 (2010) (“Because plaintiff’s argument was
not presented to the court until oral argument, the court considers this argument waived.”)
(citation omitted). However, given the rigorous exigencies of the expedited briefing schedule
necessitated by this bid protest, the court has considered all of the parties’ arguments, even those
presented for the first time at oral argument.
14
they would have been in 2009. Def.’s Mot. at 14. If, indeed, ACS could have
provided equivalent airlift support services in 2009, defendant could have removed
transport services from the State Contract (and from DynCorp), with less
disruption to essential services in Afghanistan and less disruption to its
management of existing contracts. Now, in January 2013, the government states
that changes in aviation security in Afghanistan reduce the availability of
alternatives to just one – a sole-source contract award to DynCorp. Id.; Milstead
Decl. ¶ 16. Although plaintiff argues that the security concerns of the government
regarding ACS are not substantiated, the court must credit the assessment of those
concerns presented by the declarant proffered by the government. In the court’s
view, the cost to the government of this eleventh-hour protest is greater than that of
an earlier, timely protest, where cheaper and less disruptive corrective action
would have been available.
The court finds that ACS unreasonably delayed its protest and that the
government was economically prejudiced as a result. Plaintiff’s bid protest is
barred by laches, and must be dismissed on these grounds. In the interests of
judicial economy, the court considers, in the alternative, the merits of plaintiff’s
protest, which alleges that a cardinal change of the State Contract occurred when
DynCorp began providing air passenger and cargo service in Afghanistan.
VI. The Cardinal Change Doctrine in the Bid Protest Context
A. Caselaw
The cardinal change doctrine was developed to discern whether
modifications to a government contract were severe enough to constitute a breach
of contract by the government. See, e.g., Allied Materials & Equip. Co. v. United
States, 569 F.2d 562, 563-64 (Ct. Cl. 1978) (citations omitted). A cardinal change
“occurs when the government effects an alteration in the work so drastic that it
effectively requires the contractor to perform duties materially different from those
originally bargained for.” Id. Another influential definition of the cardinal change
doctrine states that:
The basic standard, as the court has put it, is whether the
modified job was essentially the same work as the parties
bargained for when the contract was awarded. Plaintiff
15
has no right to complain if the project it ultimately
constructed was essentially the same as the one it
contracted to construct. Conversely, there is a cardinal
change if the ordered deviations altered the nature of the
thing to be constructed. Our opinions have cautioned
that the problem is a matter of degree varying from one
contract to another and can be resolved only by
considering the totality of the change and this requires
recourse to its magnitude as well as its quality. There is
no exact formula . . . . Each case must be analyzed on its
own facts and in light of its own circumstances, giving
just consideration to the magnitude and quality of the
changes ordered and their cumulative effect upon the
project as a whole. In emphasizing that there is no
mechanical or arithmetical answer, we have repeated that
[t]he number of changes is not, in and of itself, the test[.]
Air-A-Plane Corp. v. United States, 408 F.2d 1030, 1033 (Ct. Cl. 1969) (internal
quotations and citations omitted).
The cardinal change doctrine has found use in the bid protest context, as
well. In AT & T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993)
(AT & T), the court explained how the cardinal change doctrine should be applied
when reviewing contract modifications to ensure that competition requirements are
met by a procuring agency:
This [bid protest] does not ask whether Government
modifications breached a contract, but asks instead
whether Government modifications changed the contract
enough to circumvent the statutory requirement of
competition. The cardinal change doctrine asks whether
a modification exceeds the scope of the contract’s
changes clause; this case asks whether the modification is
within the scope of the competition conducted to achieve
the original contract. In application, these questions
overlap. A modification generally falls within the scope
of the original procurement if potential bidders would
16
have expected it to fall within the contract’s changes
clause.
Id. at 1205 (citations omitted).
Perhaps the most common factual scenario that implicates the cardinal
change doctrine in bid protests occurs when a disappointed bidder learns of
changes in the awardee’s contract, and then attempts to invalidate the contract
modification on the grounds that the changed contract is not that which was
competed by the agency. See, e.g., AT & T, 1 F.3d at 1202-03 (services added to
awardee’s contract trigger protest by disappointed bidders alleging that contract
modifications are out of the scope of the original competitive procurement);
CWT/Alexander Travel, Ltd. v. United States, 78 Fed. Cl. 486, 493-94 (2007)
(delays in award and start dates of contract, as well as price increases, alleged to
constitute a cardinal change to the contract). Nevertheless, the basic analytical
framework of the cardinal change doctrine is the same whenever a protestor alleges
that competition has been frustrated by modifications to a contract, i.e., that the
procuring agency has impermissibly strayed from the scope of the contract
requirements that were advertised to offerors. Regardless of the procurement
scenario, the inquiry is fundamentally the same – “whether Government
modifications changed the contract [requirements] enough to circumvent the
statutory requirement of competition.” AT & T, 1 F.3d at 1205.
B. Statutory Framework
The Competition in Contracting Act (CICA) requires executive agencies,
when procuring property or services, to “obtain full and open competition through
the use of competitive procedures,” unless certain specified exceptions apply. 41
U.S.C.A § 3301(a)(1) (West 2011). It is this statutory imperative for full and open
competition that is violated if a procuring agency makes a cardinal change to a
contract requirement after accepting bids in response to a solicitation. See AT & T,
1 F.3d at 1205 (“[M]odifications outside the scope of the original competed
contract fall under the statutory competition requirement.”). In other words, a
cardinal change to a contract after the contract has been awarded disguises the
essential nature of the competed contract and frustrates full and open competition.
VII. Analysis of the Merits of ACS’s Protest
17
A. Evolving Missions Are Anticipated in the Solicitation
The court’s first task is to determine whether the scope of the Solicitation, as
described by the Solicitation’s terms and its Changes clause,9 would have led
bidders to expect that the Afghan airlift services disputed here could reasonably be
included within the State Contract. See AT & T, 1 F.3d at 1205 (“A modification
generally falls within the scope of the original procurement if potential bidders
would have expected it to fall within the contract’s changes clause.”). Plaintiff
advises that in solicitation interpretation, as in contract interpretation, the court
must give meaning to all of a solicitation’s terms. Pl.’s Mot. at 49-50. The court
agrees with plaintiff’s view of contract interpretation. Even more apt advice comes
from the Federal Circuit, however, which suggests that in bid protests alleging that
a cardinal change has occurred, the court must focus on the “the [challenged
contract] modification in the context of the contract as a whole.” AT & T, 1 F.3d at
1207. It is necessary, therefore, to begin with an analysis of the context of services
described in the Solicitation.
1. The Solicitation’s Context
Here, the Solicitation noted that contract services “are currently performed
in Colombia, Bolivia, Peru, and Pakistan, and are anticipated in Mexico and
Afghanistan in the near future.” AR at 104. The court observes, first, that there is
no limit to the number of countries that could be served, or to the specific countries
that could be served under the State Contract. Thus, unless each of the country-
specific tasks enumerated in the Solicitation are identical, a bidder would have
realized that services to be performed in newly-added countries might well be
different from those provided in Bolivia or Peru, for example.
Upon a close reading of the Solicitation, there are, as it happens, significant
differences in the types of services provided in Colombia or Pakistan, for example,
from those provided in Bolivia and Peru. Of particular interest here, in Colombia
the awardee would be responsible for “Air Assault/Aerial Transportation of
9
/ The Solicitation, and the resulting State Contract, contained both a fixed-price and a
cost-reimbursement Changes clause. AR at 58-59, 1737-38. For ease of reference, the court
refers to these clauses as the “Changes clause.”
18
Personnel and Cargo.” AR at 187. Two separate provisions of the Solicitation,
specific to Colombia in this regard, are relevant:
The Contractor routinely supports multiple-ship
helicopter air assault operations, which involves troop
transport helicopters and armed escort helicopters. The
Contractor shall maintain the capability to perform
special mission tasks to include but not limited to fast
rope and rappel operations. At least twice per month, the
Contractor will support air assault movement of one
counternarcotics battalion (up to 500 personnel strength)
and other units.
...
The Contractor will be required to transport cargo and
personnel to meet mission support requirements in
country. Currently, the average monthly movement is
1,500 passengers and 120,000 pounds of cargo. This
support is currently provided with the C-27 and
supplemented by leased aircraft.
Id. It would be reasonable to interpret the first cited provision as describing Air
Assault and the second cited provision as describing Aerial Transportation of
Personnel and Cargo; it is also reasonable to view or interpret these two provisions
as describing similar but not identical aviation support services under the State
Contract.10
The operations in Bolivia and Peru are not described as including Air
Assault services. Furthermore, in Bolivia, no country-specific provision is
included for Aerial Transportation of Personnel and Cargo. See AR at 194. In
Peru, the Aerial Transportation of Personnel and Cargo country-specific provision
states that
The Contractor will be required to transport an average of
30 passengers and up to 6000 pounds of cargo (or a
10
/ The court notes that the first provision describes helicopter missions and that the
second describes transport in a C-27 aircraft.
19
combination thereof) at least three times a week between
Lima [and contract performance locations].
Id. at 200. Because operations in Colombia, Bolivia and Peru all differ in the type
of Aerial Transportation of Personnel and Cargo services to be provided, a bidder
on the State Contract could not assume that aviation support services in a newly-
added country would be the same as those described in the Solicitation for these
three countries. In the court’s view, a bidder would have assumed that different
types of aviation support services could well be required under the contract in
Afghanistan.
The court turns its focus to Pakistan. The Solicitation includes a markedly
different description of missions to be performed in Pakistan, as opposed to the
missions described for the operations in Bolivia and Peru. Here are perhaps the
most relevant Pakistan-specific terms of the Solicitation, in the “Mission
Overview” description:
The Bureau for International Narcotics and Law
Enforcement Affairs, Office of Aviation (INL/A) is
primarily responsible to support the U.S Embassy
Country Team and NAS, Islamabad to assist the
Government of Pakistan (GOP) in the Border Security
Project. Under the auspices of the US Country Team, the
Narcotics Affairs Section (NAS) is primarily responsible
to assist host nation government to gain and maintain
control of the Pakistan-Afghanistan border through the
surveillance and interdiction of terrorists, narcotics, arms
and other unlawful cross-border activities. INL/A
supports this mission with the Huey IIs and C-208
Cessna Caravans.
AR at 203.
In Pakistan, the State Contract’s primary focus is to assist Pakistan “to gain
and maintain control of the Pakistan-Afghanistan border.” Id. In Bolivia, in
contrast, the “Mission Overview” states that:
20
The Bureau for International Narcotics and Law
Enforcement Affairs, Office of Aviation (INL/A) is
primarily responsible to support the U.S Embassy
Country Team and NAS, La Paz to assist the Government
of Bolivia (GOB) to curtail the supply of illegal drugs
from Bolivia to the United States. INL/A performs this
mission through the Bolivia Air Program in support of
the NAS.
Id. at 192. The operations in Bolivia differ in many respects from the operations in
Pakistan. Similarly, for Peru the “Mission Overview” states that the primary focus
of the State Contract will be the “curtailment of the supply of illegal drugs from
Peru into the United States.” Id. at 198. Reasonable bidders would assume from
these country-specific descriptions of contract services that the missions to be
accomplished in Afghanistan would differ from those in Bolivia and Peru, just as
the missions to be accomplished in Pakistan are different from those in Bolivia and
Peru.11
As the court reads the Solicitation, aviation support services in each country
served, and the country-specific primary and secondary missions of INL/A, would
differ. This context is crucial to the determination of the scope of the State
Contract. The court now turns to the parties’ dispute as to the scope of the
Solicitation.
2. The Solicitation’s Scope
Plaintiff and defendant fundamentally disagree as to the scope of the
Solicitation. To summarize plaintiff’s argument, five main points appear to
provide the foundation upon which plaintiff’s reading of the Solicitation rests.12
First, the Solicitation must be narrowly construed as seeking, at bottom, a counter-
11
/ This expectation of differing missions in Afghanistan is not only logical due to the
country-specific missions described in the Solicitation, but due to the unique role the United
States government was fulfilling in Afghanistan in 2003.
12
/ While plaintiff’s approach attacks the text of the Solicitation on many fronts, this
selection of five main points reflects, in the court’s view, plaintiff’s strongest arguments.
21
narcotics contractor for counter-narcotics missions.13 See, e.g., Pl.’s Mot. at 4 n.2
(suggesting that the primary and secondary missions noted in the Solicitation could
be referenced by the term “counternarcotics mission”); 46 (“The Counter-Narcotics
Solicitation was precisely that: a solicitation for aviation services in support of
designated counternarcotics missions.”). Second, all references in the Solicitation
to flexibility, additional tasks or evolving missions must be construed to include a
significant limitation – that all services added to the State Contract would
necessarily have a counter-narcotics focus. See id. at 49 (arguing that the
Solicitation’s reference to flexibility must be interpreted as stating that “flexibility
must be exercised within the confines of the Counternarcotics Solicitation and does
not authorize INL/A to acquire wholesale new airlift requirements materially
different from the services solicited in the original competion”); Pl.’s Reply at 9
(arguing that “broad-based air carriage of personnel or cargo . . . unrelated to
counternarcotics activities was beyond the scope of the contract’s counternarcotics
support mission”). Third, the Solicitation’s lack of a broad catch-all category of
services, or reference to any specific passenger-related services such as ticketing or
reservations, would have led offerors to assume that passenger service was beyond
the scope of the State Contract.14 Pl.’s Mot. at 47-48. Fourth, aerial transportation
of personnel and cargo, a category of services described in the Solicitation, cannot
be interpreted to include airlift services that do not have an emergency or military
nature, or that do not have a counter-narcotics purpose. Id.; Pl.’s Reply at 14-15.
Fifth, the Solicitation must be viewed as imbued with a strong nationalization
13
/ Plaintiff retreated somewhat from this position at oral argument. See OA Rec. at 1:27
PM-1:28 PM (acknowledging that the Solicitation contains more than just counter-narcotics
missions). Nonetheless, plaintiff insisted that the counter-narcotics “context” of the Solicitation
should color any interpretation of the Solicitation as a whole. Id. at 1:29 PM.
14
/ The court has also considered plaintiff’s other arguments parsing a multitude of terms
in the Solicitation, but finds these arguments insufficient to alter the court’s view of the scope of
that document. To cite just one example, plaintiff argues that no passenger aircraft suitable for
airlift services in Afghanistan were listed in the Solicitation. Pl.’s Mot. at 6, 55. Defendant
notes that the Solicitation’s terms allowed for the addition of aircraft (and new types of aircraft),
and that some aircraft listed in the Solicitation are indeed capable of passenger transport in
Afghanistan. See Def.’s Mot. at 23 (citing AR at 80, 169, 2005). Plaintiff’s reply brief did not
rebut defendant’s arguments in this regard. The court rejects plaintiff’s contention that its
analysis of specific terms in the Solicitation, “recounted in painstaking detail,” Pl.’s Reply at 15,
shows that the Solicitation’s scope did not include airlift support services of the type provided by
DynCorp in Afghanistan.
22
mission, where the contractor would provide training to host country nationals in
furtherance of achieving a transition to counter-narcotic aviation support services
being provided by the host countries and not by the United States. Pl.’s Mot. at 51-
52; Pl.’s Reply at 9-10, 14. Because DynCorp’s performance of airlift services in
Afghanistan includes no training component, plaintiff argues, these services must
be beyond the expectations of offerors responding to a Solicitation characterized
by a strong nationalization mission. Pl.’s Mot. at 51-52.
Defendant, on the other hand, views the Solicitation as denoting a
procurement for a broad range of aviation support services. Defendant points to
language listing a multitude of services to be provided under the State Contract,
such as this introductory statement of technical requirements:
This document provides the technical requirements for
the Bureau for International Narcotics and Law
Enforcement Affairs, Office of Aviation (INL/A)
Contractor Logistical Support (CLS) services for
eradication and interdiction of illicit drugs, training of
Contractor and host nation personnel, movement of
personnel and equipment, reconnaissance, search and
rescue, medical evacuation and ferrying of aircraft.
AR at 168. The government also points to terms of the Solicitation that are
expansive and broad, rather than narrow and specific. See Def.’s Mot. at 19.
Finally, defendant argues that the mention of “‘extremely hostile’” and “‘very
austere’” conditions in the Solicitation would have led offerors to presume that
contract missions would evolve as conditions required. Id. at 20 (quoting AR at
168).
Although both plaintiff’s and defendant’s positions reflect, at times,
somewhat extreme interpretations of the Solicitation,15 the court cannot disagree
15
/ Plaintiff’s efforts to extract meaning from Solicitation terms are, in some instances,
strained. The grouping of Air Assault and Aerial Transportation of Personnel and Cargo in one
paragraph of the Solicitation, for example, does not necessarily evince a “linkage” of the type
posited by ACS. See Pl.’s Mot. at 48 (citing AR at 171); see also Pl.’s Reply at 15 & n.10.
Defendant, for its part, appears to find remarkable breadth in the Solicitation’s description of
continue...
23
with the government’s ultimate conclusion that aerial transportation of passengers
and cargo, at least in the context of protecting the interests of the United States in
Afghanistan, is within the scope of the Solicitation. First, as noted supra, different
types of aerial transportation are required in the country-specific portions of the
Solicitation, and different missions are required to be accomplished in different
nations. Second, there is enough flexibility in the Solicitation’s terms to support
aerial transportation of passengers and cargo in hostile environments. See, e.g.,
AR at 166 (“Secondary missions include pipeline security, border patrol, and other
related activities.”); id. (“The anticipated annual contract value is approximately
$170M, but could vary greatly depending upon how the mission evolves over the
performance period.”); id. at 167 (“Flexibility: Due to the evolving nature of the
mission, the contractor must be able to react to changing conditions quickly, with
minimal impact to steady state operations.”); id. at 169 (“The Department of State
anticipates expansion of the program, to include other aircraft types and or
quantity, and additional missions (counter-narcotics and expanded authorities) into
other countries.”). Third, the court finds that the provisions in the Solicitation
governing Aerial Transportation of Personnel and Cargo, alongside reference to
other operations of considerable variety, provide notice to reasonable offerors that
airlift support services in Afghanistan are contemplated under the terms and the
Changes clause of the Solicitation.
Plaintiff argues that “references” to the Aerial Transportation category of
services in the Solicitation are determinative of the expectations of offerors as to
airlift support services:
The issue before the Court, then, is whether the
references in the Counternarcotics Solicitation to “aerial
transportation of personnel and cargo” would have
sufficiently alerted prospective offerors to the possibility
that the government would use the resulting contract as a
vehicle to obtain from its counternarcotics contractor
full-scale commercial-equivalent passenger and cargo
services, including an online ticketing/reservation
15
/ ...continue
“VIP missions.” Def.’s Mot. at 20, 24. The court is not persuaded by these zealous attempts to
find textual support for the parties’ positions where there is little or none to be found.
24
system, under which the contractor would serve all the
in-country air transportation needs of diplomacy and
development personnel, regardless of any connection to
the specific counternarcotics missions identified in the
Solicitation.
Pl.’s Reply at 14 (emphasis removed). The court does not agree with plaintiff’s
framing of the decisive issue for the merits of this protest. It is the Solicitation as a
whole, and especially the comparison of the context of the Solicitation with the
contract modification challenged here, that must be weighed by the court. See AT
& T, 1 F.3d at 1207. The Solicitation, aside from its important references to Aerial
Transportation of Personnel and Cargo, exhibited variety in the description of the
operations in Colombia, Bolivia, Peru, and Pakistan, and significant references to
flexibility and anticipated changes. Thus, although the Aerial Transportation
category of services is indeed important in the court’s analysis, the court must
construe the Solicitation as a whole.
The court has reviewed the relevant sections of the Solicitation and cannot
agree with plaintiff that secure air transportation of passengers and cargo, in the
hostile and austere conditions found in countries such as Afghanistan, was not
included within the Solicitation’s scope. The Technical Requirements Document
(TRD) describes “Aerial Transportation of Personnel and Cargo,” in relevant part,
in this manner:
Aerial transportation is defined as the movement of
personnel and cargo via rotary and/or fixed wing
aircraft. . . . The Contractor shall provide mission
capable aircraft and mission qualified crews to perform
the transportation mission.
AR at 171. Other operations, or missions,16 include search and rescue, medical
evacuations, and VIP missions. AR at 171-72. As an introduction to these
operations, the Solicitation states that
16
/ These terms are used interchangeably in this section of the Solicitation. See AR at
170 ¶ 3.3.
25
[t]he types of missions the Contractor will be required to
perform are listed below. We anticipate that mission
profiles may change and the Contractor shall be capable
of adapting to these changes.
AR at 170. The court has considered: (1) the performance period of more than ten
years for the State Contract; (2) the types of operations specified in the TRD; (3)
the variety of missions described in the Solicitation; (4) the differences in the
country-specific portions of the Solicitation; (5) the multiple and prominent
references to flexibility, adaptation and change; and, (6) the unique challenges of
protecting the interests of the United States in Afghanistan. In view of the context
of the State Contract set forth in the Solicitation, the court finds that a reasonable
offeror would have anticipated that in a country such as Afghanistan, secure air
transportation of passengers and cargo would be within the scope of the State
Contract.
There has been, therefore, no cardinal change effected by the addition of
airlift support services in Afghanistan to the State Contract.17 Thus, even if
plaintiff’s bid protest were not barred by laches, the protest filed by ACS has not
succeeded on the merits. Because plaintiff has not shown that a cardinal change of
the State Contract occurred, the court need not consider whether ACS was
prejudiced by Mod 12 and the addition of airlift support services in Afghanistan to
the State Contract. See Bannum II, 404 F.3d at 1351 (stating that the prejudice
inquiry is triggered by the plaintiff’s success on the merits of its protest).
VIII. Injunctive Relief Factors Weighed
Although the court has dismissed this protest as barred by the doctrine of
laches, and has found that plaintiff has not succeeded on the merits of its bid
17
/ In reaching this conclusion, the court does not ignore plaintiff’s reference to a
document which contains a statement that the State Contract’s scope has grown and changed
over the years. See Pl.’s Mot. at 1, 45-46. This document is not within the administrative
record, as discussed infra. Even if it were in the record, the court considers the document
irrelevant to the court’s analysis of the Solicitation and the changes effected by Mod 12.
Because Mod 12 is a permissible change under the Changes clause of both the Solicitation and
the State Contract, a statement regarding the “scope” of the State Contract cannot determine the
outcome of this suit.
26
protest, the court nonetheless examines plaintiff’s requests for preliminary and
permanent injunctive relief, again for the sake of judicial economy.
The factors to consider before issuing a permanent injunction are:
(1) whether, as it must, the plaintiff has succeeded on 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)). For
a preliminary injunction, plaintiff would have to show a likelihood of success on
the merits, but the other factors remain the same. Id.A. Success on the Merits
Here, plaintiff has not succeeded on the merits, so the first factor weighs
against any injunctive remedy. Indeed, this court has stated that without success
on the merits, the injunctive relief inquiry is over. See, e.g., Sci. Applications Int’l
Corp. v. United States, No. 11-690C, 2012 WL 5869366, at *49 (Fed. Cl. Nov. 19,
2012) (“In that [the protestor] has not prevailed on the merits of its substantive
claims, the first hurdle prerequisite to injunctive relief, inquiry is over.”); Linc
Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 700 (2010) (“After all, success
on the merits is a condition precedent to granting a permanent injunction.”).
Nonetheless, the court will briefly discuss the other injunctive relief factors as they
apply to plaintiff’s requests for relief in this bid protest.
B. Irreparable Harm
The types of economic harm described by ACS, should an injunction not
issue, would normally constitute irreparable harm, in the court’s view. Plaintiff
asserts that ACS would suffer loss of revenues, both from the loss of opportunity to
compete for the airlift support services in Afghanistan, and from earnings that
27
might be available under its USAID Contract if extended, of approximately $[ ] in
2013, or [ ]% of its annual gross income. Pl.’s Reply at 22. Plaintiff also argues
that non-monetary losses, flowing from its withdrawal from Afghanistan and lay-
offs of personnel, would be irreparable, as well. Pl.’s Mot. at 60. The court must
consider, however, whether plaintiff’s allegedly irreparable economic harms are
fully incidental to the purported procurement violation that is the focus of this bid
protest. They are not.
When significant delay in bringing a protest has contributed to the
irreparable nature of the injuries alleged by the plaintiff, any self-inflicted harm
should not be considered irreparable for purposes of the injunctive relief analysis.
See GEO Grp., Inc. v. United States, 100 Fed. Cl. 223, 229 (2011) (GEO Group)
(noting that it is not this court’s role to rescue protestors from their “own ill-fated
tactical decisions”) (citations omitted). The imminent loss of ACS personnel at the
end of this month, or soon thereafter,18 is largely due to ACS’s decision to delay its
protest until January 2013. As to ACS’s economic losses, these, too, might have
been less substantial in 2009 or 2010. Although ACS has made a credible case for
at least some irreparable economic harm not of its own making, the court finds that
this factor weighs only slightly in plaintiff’s favor.
C. Balance of Hardships
As to the balance of the hardships, the court weighs the economic and non-
economic harms to ACS, should an injunction not issue, against the hardships that
would be inflicted on the government were the court to enjoin DynCorp’s
performance of airlift support services in Afghanistan under the State Contract.
The harms to ACS have been described, above, and some of the hardships that
would affect the government have been alluded to, indirectly, in the laches
discussion in this opinion. Plaintiff, both in its briefs and at oral argument, has
suggested that there are a number of creative ways that the government can reduce
the hardships flowing from an injunction, so that no hardships are experienced by
the government. Perhaps the most intriguing of these suggestions, and there are
many, is that DynCorp could continue to perform air passenger service in
Afghanistan as a subcontractor to ACS. OA Rec. at 1:21 PM. More generally,
18
/ The termination date of ACS’s performance under the USAID Contract may be
extended, according to plaintiff. See Reid 2d Decl. ¶ 11.
28
plaintiff insists that ACS can perform the required airlift support services as an
alternative to DynCorp. Finally, plaintiff notes that State has indicated that it
would resort to a sole-source contract with DynCorp, in the event of an injunction,
to prevent an unacceptable interruption of essential services; ACS argues that this
option eliminates any potential hardship to the United States. OA Rec. at 2:17 PM.
The government’s primary argument in this regard is that ACS is not an
acceptable alternative to DynCorp, under the security challenges in Afghanistan at
this point in time and going forward, and that an injunction will cause significant
hardship to the government. Def.’s Mot. at 32-35; Def.’s Reply at 13-15. The
court credits the record evidence which supports defendant’s arguments regarding
the need for DynCorp, rather than ACS, to continue as the provider of airlift
support services in Afghanistan. The court also agrees with the government that an
injunction will cause greater hardship to the government than the hardships posited
by plaintiff in the absence of an injunction. As noted earlier in this opinion, a
court-imposed dissolution of the Embassy Air model of services, built by State and
DynCorp over the last six years, would necessarily entail economic, programmatic
and administrative hardships of significant magnitude.
The court is not persuaded by plaintiff that a potential decision by State to
offer a sole-source contract to DynCorp, in the event of an injunction, tips the
balance of hardships in plaintiff’s favor. This court has repeatedly held that a
protestor’s delay in bringing a protest must be accounted for in the balance of
hardships inquiry. See, e.g., GEO Group, 100 Fed. Cl. at 230 (weighing the
protestor’s decision to delay filing its protest in this court in the balance of
hardships inquiry); Elmendorf, 105 Fed. Cl. at 210 (noting that “[e]quity aids the
vigilant, not those who slumber on their rights,” in a case where the protestor
waited until “28 days before the end of [its] last option extension to file its
complaint”); Bannum, Inc. v. United States, 60 Fed. Cl. 718, 731 (2004) (stating
that “a bid protest pressed well into contract performance tips the scale [weighing
injunctive relief factors] in favor of the awardee” (citing Gull Airborne
Instruments, Inc. v. Weinberger, 694 F.2d 838, 846 n.9 (D.C. Cir. 1982))), aff’d,
404 F.3d 1346 (Fed. Cir. 2005). In these circumstances, the balance of hardships
weighs in the government’s favor.19
19
/ The court notes that a sole-source contract award to DynCorp is not cost-free: the
continue...
29
D. Public Interest
Finally, plaintiff and defendant disagree as to whether or not the public
interest would be served by an injunction, in these circumstances. Plaintiff invokes
the benefits to the public interest when full and open competition prevails. Pl.’s
Mot. at 65-66; see also id. at 64 (stating that “the public interest in protecting the
integrity of the procurement system easily trumps national security in the present
case”). Defendant suggests that the public interest is served, in this case, by the
court’s abstention from judicial interference in the contracting function. Def.’s
Mot. at 35. Here, since there has been no violation of procurement law, the public
interest is best served by withholding the injunctive relief requested by plaintiff.
The court notes, too, that defendant has invoked national security concerns
in Afghanistan. By statute, the court must give due consideration to these
concerns. 28 U.S.C. § 1491(b)(3). In the case of secure aerial transportation of
passengers and cargo in Afghanistan, the national security concerns expressed in
the Milstead declaration are compelling. See Milstead Decl. ¶¶ 4-16. This court
often takes national security concerns into consideration as it weighs the public
interest injunctive relief factor. See, e.g., Elmendorf, 105 Fed. Cl. at 212; Def.
Tech., Inc. v. United States, 99 Fed. Cl. 103, 131 (2011); RhinoCorps Ltd. v.
United States, 87 Fed. Cl. 261, 281 (2009). Here, the public interest in national
security weighs against a court intervention in the airlift support services provided
by DynCorps in Afghanistan.
Weighing all four injunctive relief factors, the court finds that these factors
do not favor granting plaintiff a preliminary or a permanent injunction.
19
/ ...continue
procedure is encumbered with administrative burdens; a sole-source award may trigger, as
plaintiff notes, protests in this forum, or at the Government Accountability Office; in addition, a
sole-source award protest carries with it the risk of forum-imposed delays which could affect
contract performance in Afghanistan. The court would be remiss in its duty to consider the
national security concerns raised by defendant, Def.’s Mot. at 34-35; Def.’s Reply at 13-15; OA
Rec. at 2:58 PM, if it did not consider the hardships that would accompany a sole-source award
to DynCorp. The court therefore finds that, for this additional reason, the hardships to the
government, if an injunction should issue, outweigh the hardships identified by plaintiff, if the
court should stay its hand.
30
IX. Motions to Supplement the Record
A. Axiom
In Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed.
Cir. 2009), the Federal Circuit identified the acceptable circumstances under which
the administrative record may be supplemented in a bid protest. The Axiom panel
criticized a decision by this court which permitted supplementation of the
administrative record in a bid protest, and criticized the trial court’s over-broad
reliance on Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), a case which
provides a list of justifications for the supplementation of the administrative record
of an agency action. Axiom, 564 F.3d at 1379-81.
The court notes that the Axiom panel adopted a restrictive standard for
supplementation of the administrative record in a bid protest, and favorably cited
Murakami v. United States, 46 Fed. Cl. 731 (2000), aff’d, 398 F.3d 1342 (Fed. Cir.
2005). Axiom, 564 F.3d at 1380. The Axiom standard for supplementation of the
administrative record in a bid protest is a direct quotation from Murakami, stating
that “supplementation of the record should be limited to cases in which ‘the
omission of extra-record evidence precludes effective judicial review.’” Id.(quoting Murakami, 46 Fed. Cl. at 735). The Federal Circuit relied on the cases
cited by this court in Murakami to conclude that “[t]he purpose of limiting review
to the record actually before the agency is to guard against courts using new
evidence to ‘convert the “arbitrary and capricious” standard into effectively de
novo review.’” Id. (quoting Murakami, 46 Fed. Cl. at 735 and citing Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138,
142 (1973)). The thrust of the Axiom decision, and Murakami, is that this court
must exercise restraint when considering whether or not to supplement the
administrative record in a bid protest. See id. (favoring a “more restrictive
approach” and questioning the vitality of Esch) (citations omitted); Murakami, 46
Fed. Cl. at 735 (stating that the construction of the Esch justifications for allowing
supplementation of an administrative record should be “extremely limited”)
(citations omitted). For these reasons, this court has carefully considered each
document proffered by the parties as a potential supplement to the administrative
record.
31
B. Documents Proffered by the Parties for Consideration by the
Court
The court acknowledges that there is some confusion as to the term
“administrative record.” Sometimes such a term denotes only the
contemporaneous record of agency decision-making that is reviewed by the court
under a deferential standard. See, e.g, Axiom, 564 F.3d at 1380 (“The purpose of
limiting review to the [contemporaneous] record actually before the agency is to
guard against courts using new evidence to ‘convert the “arbitrary and capricious”
standard into effectively de novo review.’”) (citation omitted). At other times, the
term “administrative record” is meant to include not only those contemporaneous
documents, but also records of subsequent protest-related events. See RCFC App.
C ¶ 22(s), (u). “Administrative record” might also broadly refer to all of the
documents relied upon by the court, once an administrative record has been filed
and appropriately supplemented, in granting a motion for judgment on the
administrative record. See, e.g., RhinoCorps, 87 Fed. Cl. at 273 n.13 (noting that
declarations proffered by the agency and the protestor often must be permitted to
supplement the administrative record to afford effective judicial review of national
security and national defense issues, as well as the weighing of injunctive relief
factors). It is this broader definition that the court has used in the supplementation
disputes discussed here. The court has applied the principles of Axiom to establish
a record required for the effective review of both the merits of this protest, as well
as plaintiff’s requests for injunctive relief and defendant’s laches defense.
To the extent that the briefing of plaintiff’s three motions regarding the
content of the administrative record may have proceeded under a different
definition, or definitions, of the term “administrative record,” the parties’ positions
on each proffered document are nonetheless clear. The court has carefully
considered any request that the court consider and rely on a particular document
that was not filed by defendant on January 10, 2013 as a component part of the
administrative record. Any document that, pursuant to the instant opinion and
order, now supplements the administrative record originally filed on January 10,
2013, is part of the administrative record because that document was deemed
necessary to the court’s effective review of this bid protest.
On plaintiff’s side, there were three motions to supplement or expand the
administrative record: Plaintiff’s Motion to Compel Agency to Complete the
32
Administrative Record and for Additional Remedial Action, filed January 11,
2013; Plaintiff’s Motion to Supplement the Administrative Record, filed January
15, 2013; and, Plaintiff’s Second Motion to Supplement the Administrative
Record, filed January 22, 2013.20 Of particular note are two declarations of Mr.
Robin Reid, Chairman of ACS. Mr. Reid’s first declaration is Plaintiff’s Exhibit 1
(Reid 1st Decl.), filed January 15, 2013. Mr. Reid’s second declaration is
Plaintiff’s Exhibit 7 (Reid 2d Decl.), filed January 22, 2013. Plaintiff also sought
the supplementation of the record with certain State Contract documents not
included in the administrative record filed January 10, 2013, as well as other
documents which, in plaintiff’s view, provide insights into the disputes in this case.
On defendant’s side, there were two declarations filed on January 18, 2013
as appendices to defendant’s motion for judgment on the administrative record.
The first is a declaration by Mr. Eric N. Milstead, an administrator at the U.S.
Embassy in Kabul. Def.’s Mot. App. A (Milstead Decl.). The second is a
declaration of the contracting officer for the State Contract, Mr. Patrick J. Murphy.
Def.’s Mot. App. B (Murphy Decl.). Defendant did not oppose three of plaintiff’s
requests for record supplementation as to State Contract documents that were
either inadvertently omitted from, or mistakenly included in, the administrative
record.
C. Proper Supplements to the Administrative Record
Three of the declarations submitted by plaintiff and defendant, the Reid and
Milstead declarations, bear on the injunctive relief factors weighed by the court, as
well as defendant’s laches defense. The Murphy declaration presents the history of
modifications to the State Contract, and goes to the cardinal change issue. These
declarations are necessary for effective judicial review, and properly supplement
the administrative record.
As to one of the uncontested contract documents proposed as a supplement,
AR Tab 37 properly substitutes a final contract modification for a draft
modification, AR Tab 14, and is now incorporated into the administrative record
through the filing of a Corrected Administrative Record on January 14, 2013.
20
/ Plaintiff’s later motions to supplement the record have rendered its motion filed
January 11, 2013 moot. See OA Rec. at 2:19 PM-2:21 PM.
33
Similarly, Plaintiff’s Exhibit 2 and Exhibit 3, uncontested by defendant, are State
Contract documents which are relevant to the cardinal change issue, and these
exhibits properly supplement the administrative record. Over defendant’s
objections, the court also permits supplementation of the record with plaintiff’s
Embassy Air Passenger Load chart, Pl.’s Ex. 6, which provides a graphic display
of the competition of ACS and DynCorp, from May 2010 to December 2012, for
Embassy Air passengers in Afghanistan. This chart goes to the cardinal change
issue, the laches issue, as well as the weighing of the injunctive relief factors, and
has been deemed by the court to be helpful to its judicial review of this protest.
D. Improper Supplements to the Administrative Record
All other documents submitted and proposed by plaintiff, Pl.’s Exs. 4-5,
8-13, must be rejected as improper supplements to the administrative record. The
court found nothing in these documents which advanced the court’s analysis of the
cardinal change issue. As to the email correspondence proposed by plaintiff as a
supplement to the administrative record, Pl.’s Exs. 9-10, these two emails are not
contract administration documents that would shed light on changes in the State
Contract. Although plaintiff urged the court to rely on Plaintiff’s Exhibit 10 for the
weighing of the injunctive relief factors, Pl.’s Reply at 25-27, the court relied,
instead, on sworn declarations of obvious weight rather than on emails of dubious
relevance.
E. “Table 3-2” and the Security Clearance Issue
The only other substantive dispute over a document not included in the
administrative record concerns what plaintiff refers to as “Table 3-2 to the [State]
Contract.” See Pl.’s Compel Mot. Att. A ¶ 6; see also Pl.’s Consolidated
Supplementation Reply at 7; OA Rec. at 2:12 PM-2:14 PM, 2:19 PM. This
document is cited in the State Contract as “Job Qualifications Table 3-2 (Appendix
1),” and is identified as a reference document providing information regarding
contractor personnel “security clearance requirements.” See Pl.’s Ex. 3 at 46.
Plaintiff’s position is that this document would have shed light on the security
clearances required of DynCorp staff providing airlift support services in
Afghanistan, and would have shed light on the dispute between the parties over the
ability of ACS to perform airlift support services in Afghanistan. Defendant’s
position is that the Table 3-2 was never incorporated into the contract by
34
modification, and thus, Table 3-2 is irrelevant to the cardinal change issue. Def.’s
1st Supplementation Resp. at 6. The court agrees with defendant that Table 3-2
would not have aided the court’s review of the cardinal change issue.
It is a closer question, however, whether the security clearance issue, as that
issue might contribute to the weighing of the four injunctive relief factors and the
government’s laches defense, would have been better understood by the court if
Table 3-2 were in the record. The government argues that the Milstead declaration
is authoritative on the security clearance issue, and that the assertions contained
therein certainly outweigh the assertions in the second Reid declaration.21 Def.’s
Reply at 15 & n.4; OA Rec. at 3:00 PM. Plaintiff asserts that the security clearance
issue is not clearly addressed in the record, and that Table 3-2 “would be virtually
controlling” on the security clearance issue. OA Rec. at 1:21 PM, 2:14 PM.
The court believes that the security clearance issue is adequately presented
in the parties’ declarations and the contract documents themselves. There is an
obvious difference between the discussion of security clearances in the State
Contract and the minimal discussion of security clearances in the USAID Contract.
See AR at 1682, 2027-28, 2086-87; Pl.’s Ex. 3 at 46. Given the marked differences
between the security clearance requirements in the two contracts, the record
contains enough information, once the declarations proffered by the parties have
been considered, to resolve the parties’ dispute as to ACS’s readiness to obtain
security clearances to replace DynCorp as the airlift support services contractor in
Afghanistan. The Milstead and Reid declarations, which necessarily rely on
contract requirements regarding security clearances and on direct knowledge of
conditions in Afghanistan, fully explore the security clearance issue; the absence of
Table 3-2 does not frustrate effective judicial review of this issue.22
21
/ The court must agree. Compare Milstead Decl. ¶¶ 7-10, 13, 16 with Reid 2d Decl.
¶¶ 36-38. The court notes that even if Plaintiff’s Exhibit 10, an email which mentions security
clearances, were permitted to supplement the administrative record, the declaration of Mr.
Milstead, whose “duties include administrative oversight of aviation operations in support of the
Embassy’s missions” in Afghanistan, Milstead Decl. ¶ 1, would still be more persuasive on the
security clearance issue.
22
/ The court rejects plaintiff’s request, presented for the first time at oral argument, that
the court draw an adverse inference from the government’s refusal to include Table 3-2 in the
administrative record. OA Rec. at 2:14 PM-2:15 PM. As stated supra, the court does not agree
continue...
35
CONCLUSION
This bid protest is dismissed due to laches on the part of plaintiff. In the
alternative, this protest is dismissed because there was no out-of-scope
modification of the State Contract in the provision of airlift support services by
DynCorp in Afghanistan. The court has also examined the four factors required for
an injunction to issue, and finds that these factors do not weigh in favor of either a
preliminary or a permanent injunction. Plaintiff’s failure to succeed on the merits
of its protest also denies plaintiff a declaratory judgment in its favor. This bid
protest must be dismissed for the above reasons.
Accordingly, it is hereby ORDERED that:
(1) Plaintiff’s Motion to Compel Agency to Complete the Administrative
Record and for Additional Remedial Action, filed January 11, 2013, is
DENIED as moot;
(2) Plaintiff’s Motion to Supplement the Administrative Record, filed
January 15, 2013, is GRANTED in part, as to Plaintiff’s Exhibits 1-3
and 6, and DENIED in part, as to Plaintiff’s Exhibits 4-5;
(3) Plaintiff’s Motion for Leave to Exceed Page Limits of Memorandum,
filed January 15, 2013, is GRANTED;
(4) Plaintiff’s Motion for Judgment on the Administrative Record and
Entry of Injunctive Relief, filed January 15, 2013, is DENIED;
(5) Defendant’s and Intervenor-Defendant’s Motions for Judgment on the
Administrative Record, both filed January 18, 2013, are GRANTED;
22
/ ...continue
with plaintiff that the absence of Table 3-2 frustrates effective judicial review of plaintiff’s
requests for injunctive relief, or of the government’s laches defense. The court notes, further,
that even if an adverse inference were drawn against defendant on the security clearance issue,
this one component of the arguments made by the government as to laches and injunctive relief
is not so crucial that the weight of evidence would tip in plaintiff’s favor. The court would still
rule in favor of the government on laches, and would still deny plaintiff injunctive relief.
36
(6) Plaintiff’s Second Motion to Supplement the Administrative Record,
filed January 22, 2013, is GRANTED in part, as to Plaintiff’s
Exhibit 7, and DENIED in part, as to Plaintiff’s Exhibits 8-13;
(7) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant and intervenor-defendant, DISMISSING the complaint
with prejudice;
(8) On or before February 22, 2013, counsel for the parties shall
CONFER and FILE with the Clerk’s Office a redacted copy of this
opinion, with any material deemed proprietary marked out and
enclosed in brackets, so that a copy of the opinion can then be
prepared and made available in the public record of this matter; and
(9) Each party shall bear its own costs.
/s/Lynn J. Bush
LYNN J. BUSH
Judge
37