Amentum Services, Inc. v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-2029C
(Filed: December 10, 2021)
NOT FOR PUBLICATION
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AMENTUM SERVICES, INC., )
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Plaintiff, )
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v. )
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THE UNITED STATES, )
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Defendant, )
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and
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VANQUISH WORLDWIDE, LLC, )
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Defendant- )
Intervenor. )
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ORDER
SOLOMSON, Judge.
On October 15, 2021, Plaintiff, Amentum Services, Inc. (“Amentum”), filed its
initial complaint against Defendant, the United States, pursuant to 28 U.S.C. § 1491(b)(1),
challenging the award of a contract by the Department of the Army, Army Material
Command (“AMC” or the “agency”), to Vanquish Worldwide, LLC (“Vanquish”). ECF
No. 1. On October 18, 2021, Vanquish filed a motion to intervene, ECF No. 16, which the
Court granted, via an electronic minute order, on that same date. On October 19, 2021,
the Court issued a briefing schedule to resolve this case via motions for judgment on the
administrative record. ECF No. 19. On November 4, 2021, Amentum filed its amended
complaint, wherein Amentum asserts, inter alia, that AMC should have conducted
discussions, pursuant to DFARS 215.306(c)(1), but failed to do so. ECF No. 21. On
November 5, 2021, the government filed the administrative record. ECF Nos. 22, 23, 24.
In response to Amentum’s amended complaint, on December 3, 2021, the
government filed an unopposed motion to stay the proceedings in this case and for a
voluntary remand to AMC, pursuant to Rule 52.2 of the Rules of the United States Court
of Federal Claims (“RCFC”). ECF No. 26 (“Def. Mot. for Voluntary Remand”). In that
motion, the government represents that “AMC wishes to reconsider its award decision
in light of the issues raised by Amentum’s complaint” and requests, inter alia, that the
Court “remand this matter to AMC for reconsideration of the challenged decision and
any further administrative actions consistent with that reconsideration,” as well as
“authorize . . . AMC to consider any further information that the agency may gather
during the remand in accordance with any procedures that the agency may establish for
that purpose.” Id. at 3.
In support of the government’s motion for a voluntary remand, the government
argues that “[a] remand is in the interest of justice because it will provide the agency with
an opportunity to reconsider the award decision at issue in light of Amentum’s
allegations and any new information gathered during the proposed remand.” Id. at 2.
Moreover, the government contends that “[d]uring the proposed remand, the agency
potentially could make a decision that could moot this action, in whole or in part, and
may obviate the need for further litigation in this Court.” Id. Finally, the government
avers that its request is made “in good faith” and that “[w]hen, as in this case, ‘the
agency’s concern is substantial and legitimate, a remand is usually appropriate.’” Id.
(quoting SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)). The
government’s motion admits no error and does not commit to any particular course of
corrective action.
On December 7, 2021, the Court held a status conference, see ECF No. 27, to discuss
the government’s motion. Minute Order (Dec. 7, 2021). During this conference, the
government disclosed the existence of an internal memorandum that addresses whether
the agency planned to conduct discussions in the procurement at issue. That document,
however, apparently was created prior to the evaluation of proposals. In that regard, the
government is disinclined to defend the agency’s decision not to conduct discussions
based upon that memorandum. Because the remedy for a violation of DFARS 215.306, in
any event, would likely be an injunction requiring the agency to consider in the first
instance, under the proper standard, whether discussions should be conducted, the
government’s view is that the Court should permit a remand now for that very purpose.
In the government’s view, the agency will decide either (a) to conduct discussions (and
accept final proposal revisions), thus rendering the current dispute moot, or (b)
discussions are not warranted, but will memorialize its new decision for possible judicial
review, should Amentum seek to amend its complaint further to challenge such a newly
rendered decision. In the latter case, the new documentation would be added to the
administrative record.
Pursuant to RCFC 52.2, this Court, “on motion or on its own, may order the
remand of appropriate matters to an administrative or executive body or official.” As the
United States Court of Appeals for the Federal Circuit explained in SKF, 254 F.3d at 1028,
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when a court is reviewing a decision of a federal agency, as in this matter, “the
government may seek a remand[,] without confessing error, to reconsider its previous
position.” In such a situation, the trial court has “substantial discretion” to deny or grant
a motion for voluntary remand. Keltner v. United States, 148 Fed. Cl. 552, 563 (2020). Such
voluntary remand motions, however, “should not simply be granted in a perfunctory
manner[;] [r]ather, such motions should be treated as with any other motion affecting the
substantial rights of the plaintiff, by subjecting the government’s position to careful
analysis to ensure that the motion is properly supported and justified.” Rahman v. United
States, 149 Fed. Cl. 685, 690 (2020) (citing Keltner, 148 Fed. Cl. at 563).
According to the Federal Circuit, a remand is usually appropriate where “the
agency’s request is ‘substantial and legitimate.’” Keltner, 148 Fed. Cl. at 563 (citing SKF,
254 F.3d at 1028). A voluntary remand request may qualify as “substantial and
legitimate” where: (1) the agency “provide[s] a compelling justification for its remand
request”; (2) “the need for finality” does not “outweigh the [agency’s] justification”; and
(3) the “scope of [the agency’s] remand request is appropriate.” Id. at 564 (third alteration
in original) (quoting Ad Hoc Shrimp Trade Action Comm. v. United States, 37 C.I.T. 67, 71
(2013)). Additionally, “[w]here an agency requests a remand without confessing error,
the agency must express some intent to reconsider the original agency decision that is the
subject of the legal challenge.” Id. at 563; see also Owens & Minor Distrib., Inc. v. United
States, 154 Fed. Cl. 349, 353 (2021) (“Following Judge Solomson’s decision in Keltner,
Judge Hertling concluded that the Court must engage with the record before it, and make
a finding that the agency’s concerns are actually substantial and legitimate, rather than
simply crediting the United States’ litigation position . . . .” (citing Rahman, 149 Fed. Cl. at
690)).
In applying this test, the Court finds that the government has not provided
“compelling justification for its remand request.” Keltner, 148 Fed. Cl. at 564. The
government’s thin motion for remand indicates that a remand is warranted because the
agency acknowledges that, under the proper standard provided in DFARS 215.306, the
agency perhaps should have conducted discussions, and, thus, the agency wishes to
reconsider that issue. See Def. Mot. for Voluntary Remand. Additionally, the government
represents that if the motion is granted, the agency “may wish to conduct limited
communication exchanges with Amentum” and “may also decide to conduct discussions
with the offerors.” Id. at 2.
Although the government’s representation regarding compliance with DFARS
215.306 strikes the Court as generally legitimate, the Court is unconvinced that the
particular remand the government requests is “in the interest of justice.” Id. Rather, such
a remand — at least as proposed — would likely “delay this case . . . and serve to only
potentially improve the government’s litigation posture.” Keltner, 148 Fed. Cl. at 565.
The government’s mere assertion that the agency desires another opportunity to review
its decision is insufficient to justify granting the broad discretion the government seeks
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via its voluntary remand motion. In that regard, while the need for finality at this
juncture perhaps is not overwhelming, the Court sees no reason to order a remand and
have this case remain on the Court’s docket while the agency broadly reassesses its
position, all while having an unrestricted opportunity to effectively supplement the
administrative record — something the government could not so easily accomplish
during the litigation of this case. Furthermore, the Court finds that the scope of the
government’s remand request is inappropriate. As delineated supra, the government
proposes broad discretion in its remand request, including the right to take “any further
administrative actions consistent with [its] reconsideration” of the challenged
procurement decision, and the right to “consider any further information that the agency
may gather during the remand in accordance with any procedures that the agency may
establish for that purpose.” Def. Mot. for Voluntary Remand at 3 (emphasis added). Such
latitude is neither appropriate nor just given the narrow issue the agency putatively seeks
to address — whether the agency should have conducted discussions in the first instance.
Cf. Owens & Minor Distrib., 154 Fed. Cl. at 355 (noting that “the scope of the proposed
remand is inappropriate”).
In other words, the agency either stands by its award decision or it does not, and
the procurement decision at issue is either ripe for review or it is not. The Court sees no
reason in this case to superintend a remand process by adopting the government’s
proposed voluntary remand order.
Accordingly, the Court declines to exercise its discretion to order a remand here.
The Court nevertheless concludes that a temporary, brief stay of this case for the
government to reconsider its contract award decision — i.e., to determine whether
discussions are warranted here (pursuant to DFARS 215.306) — is a fitting compromise,
one to which no party raised a substantial objection during the December 7, 2021, status
conference, when the Court proposed it. Accordingly, on or before the expiration of the
temporary stay, the parties shall file a joint status report, indicating one of the following:
1. The government has decided to rescind the disputed contract award for the
purpose of engaging in discussions (and accepting final proposal revisions),
thereby rendering this case moot;1
1 See Oak Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 110–112 (2021) (holding that “the
Agency got the proper framework completely backwards because the DFARS provision makes
conducting discussions the default absent a justification to the contrary” and noting that the “the
Federal Circuit affirmatively agreed with the agency’s conclusion in Dell Federal that the failure
to conduct discussions was an ‘undisputed procurement defect’” (quoting Dell Fed. Sys., L.P. v.
United States, 906 F.3d 982 (Fed. Cir. 2018))).
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2. The government has decided not to rescind the current contract award, in
which case the parties shall propose a schedule for further proceedings;2 or
3. The government proposes to rescind the disputed award decision for yet other
reasons, in which case the parties shall provide their respective positions as to
how the case should proceed, if at all.
In sum, the Court hereby DENIES, in part, Defendant’s motion to remand, but
GRANTS Defendant’s request for a stay. Accordingly, this case is STAYED until
Monday, January 24, 2022, on or before which the parties shall file a joint status report as
indicated above.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
2 In the event the government decides that discussions are not warranted and produces new
documentation to justify that decision, the government shall add such documentation to the
administrative record filed with the Court. Amentum shall be given the opportunity to object to
any such additional documentation and/or to amend its complaint to challenge any new agency
justification not to conduct discussions. In that regard, however, the Court notes that Amentum
itself agreed that, even if it were to prevail on the merits of its current complaint with respect to
the discussions issue, the Court likely would order the agency to make a new decision (regarding
discussions) under the correct legal standard. Thus, the Court’s approach here is without
prejudice to Amentum; even if the agency reaffirms its decision not to conduct discussions and
issues a new supporting explanation, Amentum is no worse off than if it had prevailed on the
merits with respect to this issue given the government’s suggestion that the record, as it currently
stands, lacks a contemporaneous justification. In other words, the result for Amentum likely
would be the same either way: a new agency decision either (a) to engage in discussions, or (b) to
reject discussions along with an opportunity to challenge that new decision.
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