Agustawestland North America, Inc. v. United States

lfn tbe Wniteb ~tates ~ourt of .f f eberal ~laims
No. 14-877 C
Filed: August 24, 2016
PUBLIC VERSION*
**************************************** Administrative Procedures Act
("APA"), 5 U.S.C. § 706;
* Bid Protest Jurisdiction,
AGUSTA WESTLAND NORTH AMERICA, *
INC., * 28 u.s.c. § 1491;
Competition In Contracting Act
* ("CICA"), 10 U.S.C. § 2304(a);
Plaintiff, * IO U.S.C. § 2305(a)(l); 31 U.S.C.
* § 3551 et seq.;
v. * Deliberative Privilege;
* Department of Defense Instruction
THE UNITED STATES, * 5000.02 (Operation oftheDefense
* Acquisition System);
Defendant, * Federal Acquisition Regulation
* ("FAR") 6.302- 1 (Sole Source
and * Procurement); 6.303 (Justification);
* 6.304 (Approval of the
AIRBUS HELICOPTERS, INC., * Justification); l 7.207(f) (Exercise of
* Options);
Defendant-Intervenor. *
Rules of the United States Court of
* Federal Claims ("RCFC") 8(a)(l)
****************************************
(Pleading Requirements); RCFC
12(b)(l) (Jurisdiction); 12(b)(6)
(Failure To State A Claim); 12(f)
(Motion To Strike); RCFC 15(d)
(Supplemental Pleadings); RCFC
52.1 (Administrative Record); 52.2
(Remand); RCFC 65(a)
(Preliminary Injunction).
Neil H. O'Donnell, Rogers Joseph O'Donnell, PC, Washington, D.C., Counsel for Plaintiff.
Anthony F. Schiavetti, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Government.
Thomas L. McGovern, III, Hogan Lovells US LLP, Washington, D.C., Counsel for the
Defendant-Intervenor.
*On August 15, 2016, the court forwarded a sealed copy of this Memorandum Opinion
And Order to the parties to redact any confidential and/or privileged information from the public
version and note any citation or editorial errors requiring correction. On August 22, 2016, the
parties filed proposed revisions and redactions. On August 24, 2016, the court issued an
unredacted and revised version of this Memorandum Opinion And Order, under seal. That same
day, the court also issued a public redacted and revised version.
MEMORANDUM OPINION AND ORDER ENJOINING THE ARMY'S DESIGNATION
OF THE UH-72A LAKOTA HELICOPTER AS THE ARMY'S "INSTITUTIONAL
TRAINING HELICOPTER" AND DECEMBER 10, 2015 PROPOSAL TO PURCHASE
ADDITIONAL UH-72A LAKOTA HELICOPTERS, WITHOUT "FULL AND OPEN"
COMPETITION
BRADEN, Judge.
On April 3, 2014, the Army issued Executive Order 109-14 that, in part, "standardized» on
Airbus Helicopter, Inc.'s UH-72A Lakota helicopter as the "only one responsible source" for
future training helicopter purchases. Pursuant to that Executive Order, on December 10, 2015, the
Army filed a Justification and Approval ("J&A") to purchase 16 additional UH-72A Lakota
helicopters and associated services for $[REDACTED]-without "full and open competition."
The court has been advised that the Army also intends to purchase an additional 97 training
helicopters for FYI 8, subject to congressional appropriations but vvi.11 not commit whether any of
these potential purchases will be subject to "full and open competition." ECF No. 96, at 3; ECF
No. 96-1, at 3-4; AR Tab 70, at 5279. Previously, the Anny has purchased approximately 400 of
the UH-72A Lakota helicopters for approximately $3.2 billion under a 2006 Contract that was
subject to "full and open competition." AR Tab 3zh, at 2126.
For the reasons discussed herein, the court has issued a preliminary injunction and
remanded this matter to the Anny for six months to: (1) proceed with a competitive procurement;
(2) reissue a new Justification and Approval For Other Than Full And Open Competition,
conecting the deficiencies identified herein and conducting a new Independent Government
Estimate; or (3) not proceeding with this procurement. See Fla. Power & Light Co. v. Horizon
470 U.S. 729, 744 (1985).
I. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY. 1
On June 22, 2005, the United States Army ("Army") issued an Acquisition Strategy to
procure 322 Light Utility Helicopters ("LUH") by full and open competition. AR Tab 1, at 1-5.
16--17.
1
The facts discussed herein were derived from: the February I. 2016 Supplemental
Complaint ("Supp. Compl.'» and attached Plaintiffs Exhibits ("PL Exs. 2-32," comprising pages
1-182), to which the Government did not object; the February 17, 2016 Administrative Record
('4AR Tabs 1-33," comprising pages 1-2923); the March 29, 2016 Supplemental Administrative
Record ("AR Tabs 34-44," comprising pages 2924-3794); the March 29, 2016 Declaration of
David R. Cheney II, Lieutenant Colonel, United States Anny, ECF No. 71-1; Defendant-
Intervenor's March 29, 2016 Exhibits A-G, J-M, ECF No. 70-1; the June 20. 2016 Affidavit of
Shelley R. Muhammad. Special Competition Advocate ("SCA"), AR Tab 45, at 3795-97; the June
21, 2016 Supplemental Administrative Record ('"AR Tabs 45-68," comprising pages 3795-5153);
the Defendant-Intervenor's June 22, 2016 Notice Regarding UH-72 Technical Data ("6/22/16
Tech Not"); the June 30, 2016 Declaration of Gregory W. Segraves, Technical Manager, Tecolote
Research, Inc., ECF No. 116-1; the July 22. 2016 Supplemental Administrative Record ("AR Tabs
2
On July 26, 2005, the Army issued Solicitation No. W58RGZ-05-R-05 l 9 ("2006
Solicitation") requesting bids, on a full and open competition and "best value" basis, for 26 low
rate initial production ("LRIP") aircraft, "MEDEVAC [Medical Evacuation] B kits, hoist B kits,
Contractor Logistic Support (CLS), training, Contractor Field Teams (CFT), engineering services
and other supporting hardware and services." AR Tab 34, at 2924, 2926 (emphasis added).
"Options will be included in the contract to cover ten years of requirements for hardware and
services." AR Tab 34, at 2926.
On May 17, 2006, the Army issued a Statement of Work ("SOW"), defining the scope of
the proposed procurement, as follows:
A need exists for a helicopter that can provide reliable and sustainable general and
administrative support in non-hostile, non-combat environments at reduced
acquisition and operating and support costs. The missions of LUH are primarily
light GS (to include aerial transport of key personnel, air movement of supplies,
and maintenance support), Generating Force Medical Evacuation (MED EV AC),
reconnaissance, and test and training support. When the operational need arises,
the LUH will facilitate the commander's ability to conduct disaster relief
operations, civil search and rescue, augmentation of UH-60 MED EV AC aircraft,
counter drug operations, conduct of Homeland Security, and other mission
requirements such as catastrophic emergencies and support to civilian agencies
against internal threats or national emergencies if directed by the President. It has
been determined that the intended mission of the replacement helicopter can best
be satisfied through the acquisition of an aircraft that is Federal Aviation
Administration (FAA) certified. The LUH is the Army's solution to meet these
requirements.
AR Tab 34, at 3229, 3232 (emphasis added).
In response to the 2006 Solicitation, AgustaWestland North America, Inc.
("AgustaWestland") and EADS North America Defense Company ("EADS") submitted bids.
On June 30, 2006, EADS was awarded Contract No. W58RGZ-06-C-O 194 ("2006
Contract") for $43,090,522. AR Tab 3, at 56. The 2006 Contract required that EADS provide a
base quantity of 8 LRIP UH-72A Lakota helicopters, a modified version of EADS' commercial
rotary helicopter, known as the EC-145. AR Tab 3, at 57; AR Tab 33, at 2920.
69-70," comprising pages 5154-5281); and the July 22, 2016 Declaration of Stephen 0. Murphy,
Lieutenant Colonel, United States Army, ECF No. 119-1.
3
In addition, the 2006 Contract provided that, during each Program Years ("PY") 2 through
10, the Army could exercise options to purchase up to a total of 483 UH-72A Lakota helicopters,
as Court Exhibit A indicates:
COURT EXHIBIT A
Est. Maximum
Number of
Final Fixed
Relevant Time Airbus UH-
Prices for Est. AR Cite
Period 72A Lakota
Quantities (per
Helicopters
helicopter)
Option 1 I 0/1/06 - 9/30/07 45 $[REDACTEDl AR Tab 3, at 74
Option 2 10/1/07 - 9/30/08 53 $[REDACTED] AR Tab 3, at 88
Option 3 10/1/08 - 9130109 55 $fREDACTEDl AR Tab 3, at 101-02
Option 4 10/1/09 - 9/30/10 55 $[REDACTED] AR Tab 3, at 117-18
Option 5 10/1/10 - 9130111 55 $fREDACTEDl AR Tab 3, at 133
Option 6 10/1/11 - 9/30/12 55 $[REDACTED] AR Tab 3, at 149
Option 7 10/1/12 - 9/30/13 55 $fREDACTEDl AR Tab 3, at 165
Option 8 10/1/13 -9/30/14 55 $[REDACTED] AR Tab 3, at 181-82
Option 9 10/1/14- 9/30/15 55 $[REDACTED] AR Tab 3, at 199
The last date that the Army could exercise an option was on September 30, 2015. AR Tab
3, at 199. The 2006 Contract expired on June 30, 2016. AR Tab 3, at 56.
On October 23, 2006, the General Accountability Office ("GAO") denied a bid protest
filed by AgustaWestland challenging the 2006 Contract award to EADS. ECF No. 14, at 3.
In January 2012, the President and Secretary of the Department of Defense announced a
new Strategic Guidance, requiring a reduction in the Defense Budget and resizing/reshaping of the
Armed Services to comply with the Budget Control Act of201 l. AR Tab 69A, at 5154-55. As a
result of "budgetary constraints and fiscal uncertainty" the Army was required to "shape its force
structure to reduce costs and ensure [that] it achieves further operational demand requirements."
AR Tab 69A, at 5155. Thereafter, the Headquarters of the Defense Agency decided that a
"supported aviation force restructure ... can be transformed to meet these challenges." AR Tab
69A, at 5155.
On December 31, 2012, the Department of Defense issued a Selected Acquisition Rep011
("SAR"), concluding that helicopters assigned to the Army for "administrative and logistical
missions," Homeland Security, and the Army National Guard "have reached their serviceable life
limit and must be replaced." PL Ex. 8, at 1, 4. The SAR also stated that the UH-72A Lakota
helicopter has performed well, but will be "deployed only to non-combat, permissive environments
and is to conduct primarily three missions: medical and casualty evacuations, general support, and
reconnaissance and surveillance." Pl. Ex. 8, at 4.
In April 2013, the Department of Defense FY14 President's Budget Submission reported
that: "UH-72A [Lakota helicopters] will provide the flexibility to ... support test and training
4
centers[.]" Pl. Ex. 31, at 1-2. At this time, the press reported that EADS had delivered over 250
UH-72A Lakota helicopters to the Army under the 2006 Contract. Pl. Ex. 9.
In May 2013, the Army's Annual Aviation Inventory and Funding Plan reported that a
"new training helicopter requirement has not been defined by Army Aviation." PL Ex. 7, at 4.
And, on May 16, 2013, the Department of Defense announced that it plalUled to halt the additional
acquisition ofUH-72A Lakota helicopters in 2014, because of sequester. PL Ex. 9, at 1.
In August 2013, however, the Army's Chief of Staff issued an Anny Aviation Restructure
Initiative ("ARI") "planning guidance'' to implement the following objectives:
1) Sustain and modernize the Aviation fleet within a fiscally constrained environment.
* * *
3) Replace the aging Aviation institutional training fleet at Fort Rucker.
4) Meet demand for Aviation assets at home and deployed.
5) Standardize Aviation brigade stmcture.
AR Tab 69A, at 5155.
The purpose of the ARI was
to deliver the best Army aviation force possible within resource constraints. The
ARI design provides the Anny with a modernized, ready, tailored Aviation force
by divesting legacy systems, investing in modernization of Aviation best systems,
drive to commonality and interoperability, and retains a lean force that is affordable
to train. . . . Furthermore, the ARI design enhances efficient sustainment of the
Aviation fleet by reducing aircraft types and standardizing Aviation brigade designs
(AC and RC), managing the age of the aircraft, optimizing conditions based
maintenance, and improving safety and survivability.
AR Tab 69A, at 5155.
A significant component of the ARI was a directive that the: "Institutional Training
Helicopter fleet is converted to UH-72s,'' and "the legacy [Bell Helicopter] TH-67 training
helicopter is divested." AR Tab 69A, at 5156. The ARI was to commence in FY14 and end in
FY19. AR Tab 69A, at 5156.
On September 30, 2013, the Army sent a letter to EADS requesting pricing and availability
of: (a) a Level III Technical Data Package, "'defined as all technical data necessary to manufacture
the basic UH-72A aircraft, components and subcomponents"; and (b) "[d]epot level work
requirements." AR Tab 56, at 4619. On October 8, 2013, EADS declined to provide pricing for
the Level III Technical Data Package and the depot level work requirements, requested by the
Anny. AR Tab 57, at 4621-22.
In January 2014; EADS changed its name to Airbus Group Inc. ("Airbus"). AR Tab 33, at
2915.
5
On January 10, 2014, Army officials advised the press that the Army planned "to retire its
entire training fleet ofTH-67s and replace those with LUH-72A Lakota heUcopters." Pl. Ex. 11,
at 1.
In March 2014, the Army's FY15 budget request advised Congress that the Army intended
to purchase additional UH-72A Lakota helicopters to serve as the "primary training aircraft at the
US Army Aviation Center of Excellence in Ft. Rucker." ECF No. 12, at 2; ECF No. 12-1, at 2.
On April 3, 2014, the Army issued Executive Order 109-14 that, in part, standardized on
the UH-72A Lakota helicopter as the Anny's ''Institutional Training Helicopter" to implement the
August2013ARI. ECFNo.119-l,at2;AR Tab69A,at5156.
On May 19, 2014, the Anny decided to increase the numberofUH-72A Lakota helicopters
purchased to date from Airbus by 110, i.e., from 317 to 427, ..to comply with a Congressional
mark to the FY14 National Defense Authorization Act." AR Tab 9, at 2708.
In July 2014, the Army requested authorization from Congress to reprogram $110,790,000
to purchase 21 of the 110 additional UH-72A Lakota helicopters in FY 14 and "transition[] to the
[UH-72A Lakota] as [the Army's] rotary wing training helicopter.'' ECF No. 12, at 2; ECF No.
12-2, at 2.
A July 21, 2014 press report indicated that the Anny's "original plan was to take 100 LUHs
from the active Army and 100 from the [Anny National] Guard, [but after the Guard objected],
the Army agreed to buy 100 more Lakotas from Airbus for about $800 million-55 LUH-72s in
FY-15 and 45 in FY-16-to fill the training base rather than take some Lakotas from the Guard."
PL Ex. 12, at 1.
On August 21, 2014, the Army advised Congress that it needed to reprogram funds to
purchase 17 additional UH-72A Lakota Light Utility Helicopters. See U.S. DEPARTMENT OF
DEFENSE, OMNIBUS 2014 PRIOR APPROVAL REQUEST - REVISED (2014), at 4, available at
http://comptroller.defense.gov/Portals/45/Documents/execution/reprogramming/fy2014/prior141
5s/14-l l_R_PA_Omnibus_2014_Request_Final.pdf ("DoD 2014 Reprogramming Request"). 2
Congress also was informed that the ''Army is transitioning to the LUH as its rotary wing training
helicopter." Id. Congress, however, was not told of the Army's "only one responsible source" or
standardizing decision and that the purchase of these 17 UH-72A Lakota helicopters would not be
subject to competition. The Army stated that this would produce "cost savings [that] will be
achieved by meeting the economic order quantity in FY 2014 and by reducing the number of
aircraft that will have to be procured under a new negotiated contract in FY 2016." Id. at 4-5
(emphasis added). In any event, the Army's was not approved by Congress. Pl. Ex. 16, at 3-4.
2 Since this relevant congressional communication was omitted from the Administrative
Record, the court has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with this public document, which is otherwise subject
to Fed. R. Evid. 20 I (b).
6
On September 4, 2014, the Anny filed a Sources Sought Notice to procure EC-145 aircraft
on an Other Than Full and Open Competitive basis "to supplement the Army's existing fleet." AR
Tab 20, at 2761. Subsequently, the Anny decided not to proceed with the Sources Sought Notice.
On September 19, 2014, AgustaWestland filed a Complaint For Declaratory And
Injunctive Relief, in the United States Court of Federal Claims, ECF No. 1, together with: a
September 18, 2014 Declaration of Robert LaBelle (ECF No. 1-2); a Motion For A Temporary
Restraining Order And Preliminary Injunction, ECF No. 2; a Financial Disclosure Statement
Pursuant To [Rule 7.1 of the Rules of the United States Court of Federal Claims (''RCFC")], ECF
No. 3; an Uncontested Motion To File Corrected Memorandum Of Points And Authorities, ECF
No. 7; and attached a Corrected Memorandum Of Points And Authorities In Support Of Plaintiffs
Motion For A Temporary Restraining Order And Preliminary Injunction, ECF No. 7-1.3 On that
same day, the court convened a telephone status conference during which the Government
represented that no final decision had been made to proceed with a follow-on sole source
procurement for UH-72A Lakota helicopters. On September 22, 2014, the court granted Plaintiffs
Uncontested Motion To File Corrected Memorandum Of Points And Authorities. ECF No. 8.
On September 26, 2014, the Government filed a Status Report with the court, stating that
the Anny's September 4, 2014 Sources Sought Notice indicated that the Anny had not made a
final decision as to "the competitive process that it will use to procure the aircraft and does not
expect to make that decision before the end of January 2015." ECF No. 9, at 1. Since no final
decision "with respect to the competitive process to be used" was made, the Government posited
that the court did not have jurisdiction over this bid protest, because the claims alleged in the
September 19, 2014 Complaint by AgustaWestland were not ripe for review. ECF No. 9, at 2-3.
On October 1, 2014, AgustaWestland filed a Response, urging the court to deny the
Government's request to dismiss the bid protest and continue the stay, until the Government issued
a final J&A. ECF No. 12, at 5. On October 14, 2014, the court issued an Order denying the
Government's request to dismiss Plaintiff's September I 9, 2014 Complaint and stayed
proceedings, until such time as the Government decided whether to issue a J&A. ECF No. 13, at
1-2.
On October 20, 2014, the Government filed a Status Report with the court to clarify that
the Anny may exercise options under the 2006 Contract authorizing the Army to purchase an
estimated 352-500 UH-72A Lakota helicopters over ten years, including up to 55 UH-72A Lakota
helicopters in each program year 2014 and 2015. ECFNo. 14, at 3. The Government also advised
the court that the Army "may" exercise the 2015 option to purchase 55 helicopters before
September 30, 2015. ECF No. 14, at 4.
On January 14, 2015, the Army and Airbus executed Modification P00853 "to establish
the negotiated price" for seven UH-72A Mission Equipment Packages ("MEPs"). AR Tab 3zd, at
1590-91.
3
These and all other filings by the parties as well as court orders thereafter were filed under
seal.
7
On February 3, 2015, the Govenunent filed another Status Report with the court stating
that "the Army does not expect to make a final decision until August 2015" regarding the
procurement ofadditional UH-72A Lakota helicopters, not subject to the 2006 Contract, and would
file another status report at a later date. ECF No. 15, at 3. That same day, the court again stayed
proceedings until August 31, 2015 or when the Goverrnnent' s next Status Report was filed,
whichever was earlier. ECF No. 16.
On February 12, 2015, the 2006 Contract was modified, allowing the Army to purchase an
additional 41 UH-72A Lakota helicopters from Airbus under the 2006 Contract for approximately
$220.5 million. AR Tab 3zf, at 1961--63.
On March 25, 2015, the press reported that Airbus had modified seven of the Anny's
existing UH-72 Lakota helicopters for a training configuration that "differs from the baseline
model in several ways ... [as it] includes an observer seat for the instructor, and has a 4 buzz
number' on its side that allows for easy identification ... [and] a flight control system." Pl. Ex.
23, at 2; Pl. Ex. 24, at 2 (reporting that, as of March 25, 2015, "[a]nother roughly 15 UH-72s are
being modified for the training role").
On May 1, 2015, the Army and Airbus executed Modification P00878 to add MEPs '"to the
Lakota Production Aircraft. for the Army's [August 2013] Restructure Initiative." AR Tab 3ze, at
1759--60. The new MEPs included a heat blanket; a Wide Area Augmentation System; painted
buzz numbers; ballast kit; skid shoes; a Vectoral Mast Moment Indicator; an observer seat; and a
Cockpit Voice and Flight Data Recorder. AR Tab 3ze, at 1823.
On August 31, 2015, the Govenunent filed a Status Report to advise the court that the
Army's final decision concerning whether to purchase additional UH-72A Lakota helicopters was
not expected until November 2015. ECF No. 17, at 1. On September 1, 2015, the court issued an
Order, extending the stay until November 30, 2015. ECF No. 18.
On September 3, 2015, the National Commission on the Future of the Army issued a report
stating that, "[b]ased on a quick assessment of mission suitability and costs, a review of the
decision to employ the UH-72 (LUH) as the Army's primary trainer may be warranted ... [and
observing that other] [s}uitable and less expensive primary flight trainers are available." Pl. Ex.
28, at 3 (emphasis added).
On October 9, 2015, Tecolote Research, Inc. completed an Independent Government
Estimate ("IGE"), conunissioned by the Army, to "[d]etermine the additional costs required to
procure and sustain 16 alternate aircraft for the remaining training requirement ... [including] the
additional sustainment cost impact of establishing a mixed training fleet." AR Tab 32, at 2908.
AgustaWestland' s AW 109 was the ' 4dual engine commercially produced aircraft that was used as
a representative alternative aircraft. to the UH-72A." AR Tab 32, at 2908. The IGE calculated that
the procurement and maintenance costs of adding an alternative aircraft to the fleet of UH-72A
Lakota helicopters would be approximately $[REDACT] million. AR Tab 32, at 2908. The IGE
also concluded that procuring 16 alternate helicopters would entail delays in fulfilling the A1my' s
requirements, adding an estimated minimum of three years to the delivery of these helicopters.
AR Tab 32, at 2908.
8
On November 11, 2015, the court issued an Order, staying all pending motions. ECF No.
20. On November 12, 2015, the Army modified the 2006 Contract to order 12 UH-72A Lakota
helicopters and MEPs, to be delivered starting in August 2017, at a price of approximately $61
million. AR Tab 3zh, at 2126-27. On November 30, 2015, the Government filed a Status Report
stating that the Army expected to issue a J&A sometime in December 2015. ECF No. 21, at 3.
On December 2, 2015, the court convened a telephone status conference, wherein the court
continued to stay this case, pending a Joint Status Report due on January 5, 2016 or whenever a
J&A was filed-whichever was earlier.
On December 10, 2015, the Anny issued a J&A to purchase 16 UH-72A Lakota helicopters
"on an Other Than Full and Open Competitive basis." AR Tab 33, at 2914-23. The Anny
concluded that Airbus was uniquely qualified to provide the 16 UH-72A Lakota helicopters
required to complete the Anny's fleet, because Airbus has exclusive ownership of all the teclmical
data necessary to manufacture the aircraft and related MEPs, and has declined to sell that data. AR
Tab 33, at 2915-18. In addition, the "[l]oss of standardization would result in a significant increase
in logistics support requirements and training problems associated with operating and maintaining
the UH-72{A] [Lakota] aircraft." AR Tab 33, at 2915. The Army also stated that "the estimated
duplication of costs that would be incurred in procuring and sustaining an alternative aircraft is
significant and is not expected to be recovered in its entirety." AR Tab 33, at 2916.
On December 17, 2015, the parties filed a Joint Status Report with the court confim1ing
that the Anny made a final decision to proceed with a sole source procurement of 16 additional
UH-72A helicopters; the court lifted the stay. ECF No. 22, at 1-2. On December 28, 2015, Airbus
filed an Unopposed Motion To Intervene. ECF No. 23.
On December 29, 2015, the court convened a status conference. Pursuant to that
conference, the Government filed a Notice, attaching the December 10, 2015 J&A to purchase 16
UH-72A Lakota helicopters at a price of $[REDACTED],4 including associated services. ECF
No. 29-1. 5 On that date, the court also entered a Protective Order and a second Order, granting
Airbus' Unopposed Motion To Intervene. ECF No. 24; ECF No. 28.
On January 6, 2016, the court issued an Order denying AgustaWestland's September 19,
2014 Motion For Temporary Restraining Order And Motion For Preliminary Injunction. ECF No.
33. On January 21, 2016, the cow1 issued a Scheduling Order. ECF No. 41. On January 26, 2016,
AgustaWestland filed an Application For Access To Info1mation Under Protective Order By
Expert Consultant Or Witness, Rudolph Ostovich, III. ECF No. 43.
On January 28, 2016, the National Commission on the Future of the Army reported that 17
additional UH-72A Lakota helicopters were needed to support training at Fort Rucker, Alabama.
4
According to the Army, the individual unit price ofUH-72A Lakota helicopters, including
basic fielding pack, manual, tools, and program management is: $[REDACTED]. AR Tab 33, at
2914.
5
As of December 29, 2015 the Army had purchased 330 UH-72A Lakota helicopters under
the 2006 Contract. AR Tab 33, at 2914.
9
ECF No. 96-1, at A2, A6 (April 22, 2016 Bechtel Memo). 6 On January 28, 2016, Airbus filed an
Objection To AgustaWestland's Application For Access. ECF No. 44. On January 29, 2016,
AgustaWestland filed a Withdrawal of the January 26, 2016 Application. ECF No. 45.
On February 1, 2016, AgustaWestland filed a Supplemental Complaint ("Supp. Compl.").7
including five counts, together with 31 exhibits. ECF No. 46. Agusta Westland also filed: a Motion
For Preliminary Injunction, ECF No. 47; a Memorandum Of Points And Authorities In Support
Of Plaintiffs Motion For A Preliminary Injunction, ECF No. 48, together with: the January 30,
2016 Declaration Of Rudolph Ostovich, III, Major General United States Anny (Ret.), ECF No.
49; the February 1, 2016 Supplemental Declaration Of Robert LaBelle, ECF No. 50; and the
February 1, 2016 Declaration of Lucas T. Hanback, ECF No. 51.
On February 24, 2016, the Government filed an Unopposed Motion To Amend/Correct
The Administrative Record that the court granted to include Tabs 3x, 6 and 6b to the
Administrative Record. ECF No. 59.
On March 8, 2016, AgustaWestland filed: a Motion For Judgment On The Administrative
Record ("PL Mot. JAR"), ECF No. 61, together with Plaintiffs Exhibits 33, 34a, and 34b, ECF
No. 65; the March 8, 2016 Declaration Of Everett P. Harry, ECF No. 62; the March 8, 2016
Declaration Of Neil H. O'Donnell, ECF No. 63; and a Motion For Judicial Notice "of the relevant
portions of the testimony of the Honorable John McHugh, Secretary of the Anny, given before the
Defense Subcommittee on the Senate Committee on Appropriations on April 30, 2014," ECF No.
64, at 1.
As of March 21, 2016, the Army had received 354 UH-72A Lakota helicopters, with an
additional 58 that still could be ordered under the 2006 Contract. ECF No. 71-1, at 2.
On March 29, 2016, the Government filed: a Motion To Strike the Declaration Of Rudolph
Ostovich, III (ECF No. 49); the Declaration and Supplemental Declaration Of Robert LaBelle
(ECF No. 1-2; ECF No. 50); the Declaration Of Everett P. Harry (ECF No. 62); and an Appendix
to Plaintiffs Motion for Judgment on the Administrative Record (ECF No. 65). ECF No. 68. 8 In
6Peter B. Bechtel is the Director, Capabilities Integration, Prioritization and Analysis for
the Anny. ECF No. 96-1, at A7.
7 RCFC 15(d) provides, "On motion and reasonable notice, the court may, on just terms,
pe1mit a party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented." RCFC 15(d). The February 1,
2016 Supplemental Complaint alleged that Army's actions taken after the September 19, 20 t 4
Complaint was filed were unlawful. Supp. Compl. irir 45-55.
8 The court grants the Government's March 29, 2016 Motion To Strike (ECF No. 68), in
part, because AgustaWestland's proffered Declarations (ECF Nos. 1-2, 49, 50, 62), were not
considered by the Anny in issuing the December I 0, 2015 J&A. But, the court declines to
supplement the Administrative Record wjth the January 28, 2016 Declaration of John Burke (ECF
No. 44-1 ), since it appears to be a rebuttal to the Ostovich Declaration, which the court also
declined to add as a Supplement to the Administrative Record. This ruling also applies to the
10
addition, on March 29, 2016, the Government filed a Motion To Amend/Correct the February 17,
2016 Sealed Administrative Record by including: the July 26, 2005 Solicitation for Contract No.
W58RGZ-06-C-0194 (AR Tab 34); AgustaWestland's final technical proposal (AR Tab at 35);
and Airbus' final teclmical proposal (AR Tab 36), and eight Determination and Findings Memos
made prior to exercising options on the 2006 Contract (AR Tabs 37-44). ECF No. 69.9 And, on
March 29, 2016, the Government filed a Motion To Dismiss, In Part ("Gov't Mot. To Dis."), And
Opposition To Plaintiff's Motion For Judgment On The Administrative Record ("Gov't Opp."),
And A Cross-Motion For Judgment On The Administrative Record ("Gov't Cross Mot."), ECF
No. 71. The Govenunent also proffered a March 29, 2016 Declaration of David R. Cheney IJ,
Lieutenant Colonel, United States Army. ECF No. 71-t. 10
On March 29, 2016, Airbus filed: a Cross-Motion For Judgment On The Administrative
Record And Response To Plaintiffs Motion For Judgment On The Administrative Record (ECF
No. 70); a Motion To Supplement The Administrative Record, (ECF No. 72); and a Motion For
Judicial Notice (ECF No. 72), 11 including excerpts from: the 2006 Solicitation; Airbus' Final
Technical Proposal in response to the 2006 Solicitation; an excerpt from the FY 2015 Hearing on
the National Defense Authorization Act; the 2015 Independent Cost Analysis of the Anny
Aviation Restructure Initiative; a 2015 GAO Analysis of Aviation Alternatives; Minutes froin the
September 2, 2015 National Commission on Future of the Army Meeting; an OMB Circular; and
several news articles.
March 28, 2016 First Supplemental Declaration of John Burke (ECF No. 70-2, at 68-81). The
court also denies the Government's Motion to Strike the May 16, 2014 letter to the Under Secretary
of Defense (ECF No. SO, at 8- 9), attached to the February 1, 2016 Supplemental Declaration of
Robert LaBelle (ECF No. 50).
9 The court denies the Government's March 29, 2016 Motion To Amend/Correct (ECF No.
69), in part, because AR Tabs 35-44 are not relevant to this bid protest. The court admits AR Tab
34.
10
The court has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with the March 29, 2016 Cheney Declaration (ECF No.
71 -1 ), as it discusses the current rate of deliveries of the UH-72A Lakota helicopters and the effects
of a permanent injunction.
11
The court grants Airbus' Motion For Judicial Notice as to Exhibit D (ECF No. 70-1, at
19- 27); Exhibit E (ECF No. 70-2, at 1-6); Exhibit F (ECF No. 70-2, at 7- 25); Exhibit G (ECF No.
70-2, at 26--36); Exhibit J (ECF No. 70-2, at 82- 92); Exhibit K (ECF No. 70-2, at 93-97); Exhibit
L (ECF No. 70-2, at 98-101); and Exhibit M (ECF No. 70-2, at 102--04). The court declines to
supplement the Administrative Record with the March 26, 2016 Declaration of Mr. William B.
Stedman (ECF No. 70-1, at 37-68) since it was submitted to rebut the Declaration of Robert
LaBelle, Major General (Ret.) Rudolph Ostovich, Ill, and Everett P. Harry, neither of which were
admitted by the court to supplement the Administrative Record.
11
On April 8, 2016, Agusta Westland filed a Reply And Response To Defendant's Motion To
Dismiss And Defendant And Defendant-Intervenor's Cross-Motions For Judgment On The
Administrative Record. ECF No. 79. That same day, AgustaWestland also filed: the April 8,
2016 Supplemental Declaration Of Everett P. Harry, ECF No. 80; 12 a Response To Motion To
Strike And Motion To Supplement Record, ECF No. 81 ; and a Second Motion For Judicial Notice
of RlCHARD A. BREALEY, ET AL., PRINCIPLES OF CORPORATE F INANCE ( 10th ed. 2010) and the
current United States debt, as announced by the Department of Treasury. ECF No. 82, at 2. 13 On
April 12, 2016, AgustaWestland filed a Motion To Redact Plaintiff's Reply And Response To
Defendant's Motion To Dismiss And Defendant's And Defendant-Intervenor's Cross-Motions For
Judgment On The Administrative Record. ECF No. 83. On April 13, 2016, the court convened a
telephone status conference. That same day, AgustaWestland fi led an "Application To Identify
Additional Authority." ECF No. 86. On April 14, 2016, the court granted AgustaWestland's
March 8, 2016 Motion For Judicial Notice concerning the testimony of the Honorable John
McHugh, Secretary of the Army, before the Defense Subcommittee on the Senate Committee on
Appropriations on April 30, 2014 and denied, in part, the Government's March 29, 2016 Motion
To Strike with respect to admitting Exhibits 34a and 34b. ECF No. 87.
On April 18, 201 6, the Government filed a Rep I y In Support Of Its Motion To Dismiss, In
Part, ("Gov't Reply") And Cross-Motion For Judgment On The Administrative Record ("Gov't
CM"). ECF No. 89. Airbus also filed a Reply To Plaintiffs Response To Defendant-Intervenor's
Cross-Motion For Judgment On The Administrative Record. ECF No. 90. On April 26, 2016,
AgustaWestland filed a Second Motion To Strike the Supplemental Declaration of William B.
Stedman, filed by Airbus on April 14, 2016. ECF No. 93. 14
On May 6, 2016, the Government filed a Motion For Leave To File Status Report And
Appendix. ECF No. 96. In the May 6, 2016 Motion, the Government advised the court that, in
addition to the 16 UH-72A Lakota helicopters identified in the December 10, 2015 J&A needed
for training purposes (AR Tab 33, at 2912-13), the Army has determined that an additional 17
UH-72A Lakota helicopters are needed to support training at Fort Rucker, Alabama, an additional
18 UH-72A Lakota helicopters are needed to replace UH-I and OH-58 A/C helicopters, and 62
UH-72A Lakota helicopters are needed to replace UH-60A helicopters. ECF No. 96, at 3. The
Army, however, has not decided when or under what procurement vehicle it will acquire these 97
additional UH-72A Lakota helicopters. ECF No. 96, at 3. The Anny estimated that, even if the
funding is secured and the acquisition of these 97 additional UH-72A Lakota helicopters is
approved, " the[] procurement steps leading to the award of any contract will take an estimated 30
to 36 months to complete." ECF No. 96, at 3. On May 9, 2016, AgustaWestland filed a Request
12
The court declines to supplement the Administrative Record with the Supplemental
Declaration Of Everett P. Harry (ECF No. 80), as it was not considered by the Army in issuing the
December 10, 2015 J&A.
13
AgustaWestland's Second Motion for Judicial Notice (ECF No. 82) is denied, as it is not
relevant to this bid protest.
14
The court grants AgustaWestland's Second Motion to Strike the Declaration Of Mr.
Stedman, as it was not considered by the Anny in issuing the December 10, 2015 J&A.
12
To Respond to the Government's May 6, 2016 Status Report. ECF No. 97. On May 13, 2016, the
court issued an Order granting the Government's May 6, 2016 Motion and AgustaWestland's May
9, 2016 Request and convened a status conference to schedule an Oral Argument to be held at the
National Courts Building in Washington, D.C. on June 9, 2016 at lO:OOam EST. ECF No. 99. On
May 13, 2016, the Government filed a Response to AgustaWestland's Second Motion To Strike.
ECF No. 100. On May 31, 2016, AgustaWestland filed a Response to the Government's May 6,
2016 Status Report. ECF No. 103.
On June 9, 2016, the court held Oral Argument ("6/9/16 TR 1- 100"). That same day, the
court issued an Order, requiring the Government to:
1. [p]roduce an affidavit from Shelley Muhammad, the Special Competitive
Advocate, attesting to the precise date that he/she reviewed the December 10, 2015
J&A and whether he/she concurred with the contents, together with any documents
reflecting his/her analysis of the December 10, 2015 Justification Review
Document For Other Than Full And Open Competition.
2. [p]roduce a copy of all information referred to in the Market Research Section
of AR2806-07 and Section 8 Market Research on AR2918-19.
3. [p]roduce a copy of all correspondence between the Army and Airbus in the fall
of 2013 and June 2014 concerning or relating to Airbus's refusal to sell or lease
Airbus's Technical Data Package ("TDP") for the UH-72 to the Anny.
4. [p)roduce a copy of the Subcontracting Plan referred to in lO(c) at AR 292 1.
5. [p]roduce the underlying data and materials used in the Independent Government
Estimate[.]
ECF No. 105, at 1-2.
In addition, the court directed Airbus " to supplement the Administrative Record as follows:
all internal Airbus documents regarding the refusal to sell its TDP for the UH-72 to the Army."
ECF No. 105. 15 On June 13, 2016, Airbus filed a Motion For Reconsideration of the court's June
9, 2016 Order. ECF No. 107. 16 On June 15, 20 16, the court held a telephone status conference
with the parties.
15
Airbus' submission was requested, because during the June 9, 201 6 Oral Argument,
neither Airbus' counsel nor the Government's counsel was able to inform the court what Airbus'
''Technical Data Package" included or whether the Army had access to it, as required by the 2006
Contract. 6/9/16 TR, at 6-9, 31-32, 61-62, 65-67. All of the court's e-mail requests for
information are on file in the Case Management/Electronic Case Files System. ECF No . 120- 1;
ECF No. 123-1; ECF No. 124-1.
16
The court denies Airbus' June 13, 2016 Motion For Reconsideration as moot.
13
On Jlllle 21, 2016, the Government filed a Notice Of Compliance With The Court's June
9, 2016 Order, wherein the court was informed that the Army voluntarily would stay award of a
contract with Airbus, pursuant to the December 10, 2015 J&A, until July 3 1, 20 16. ECF No. 112,
at 6. In addition, the Government provided an affidavit from Shelley R. Muhammad, the SCA,
stating that June 29, 2015 was the date he signed the December 10, 2015 J&A. AR Tab 45. 17 On
June 22, 2016, Airbus provided the court with "further information" about the "Technical Data
Package" associated with the UH-72A Lakota helicopters. ECF No. 114.
On June 22 and 23, 2016, the court sent a follow-up inquiry by e-mail to the parties,
requesting: (1) the identity of the author of AR 5076; (2) an explanation of the large blank space
on AR 5076; and (3) an explanation of how the price listed for the "[c]urrent ROM [Rough Order
Magnitude] for a[n] upgraded CPT [Cockpit Procedural Training] from Airbus" was calculated.
ECFNo. 120-1,at2.
On July 1, 2016, the Government filed a Notice Of Filing Response To The Court's
Questions Of June 22 & 23, 2016, together with the June 30, 2016 Declaration of Gregory W.
Segraves, a Technical Manager at Tecolote Research Inc., ("Segraves Deel."). ECF No. 116; 116-
1.
On July J2, 20 16, the court sent another follow-up inquiry by e-mail to the parties,
requesting the original ARI and asked whether the Anny designated the UH-72A Lakota helicopter
as the Army's "Institutional Training Helicopter" beyond the 10 year term of the 2006 Contract.
ECF No. 120-1, at 3. The court also asked the Government to reconsider denying the court' s
request to review the underlying documents and analysis of the Competition Advocate. ECF No.
120-1, at 3.
On July 22, 2016, the Government filed a Notice Of Filing Response To The Court's
Questions Of July 12, 2016 (ECF No. 119) and attached the July 22, 2016 Declaration of Stephen
0. Murphy, Lieutenant Colonel, United States Anny. ECF. No. 119-1. 18 The Government also
agreed not to proceed with the procurement until August 18, 201 6. ECFNo. 119, at 7. In addition,
the Government filed a Supplement To The Administrative Record with Tabs 69A-F and 70. That
same day, the court sent an e-mail to the parties, asking:
I. At AR 5201, the estimated costs to transition to UH-72AS is $[REDACTED]
million. How was this amount determined; by whom; what does it cover.
2. Savings of $[REDACTED] million is listed as "UH-72A OPTEMPO offset".
How was this amount determined; by whom; what does it cover.
17
The court has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with the June 30, 2016 Muhammad affidavit, as it
provides the date and verified that he reviewed the December 10, 2015 J&A.
18
The court has detennined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with the July 22, 2016 Murphy Declaration that
evidences that the policy decision of the ARI was implemented as a procurement decision by
Executive Order 109-14.
14
3. AR 5202 appears to represent that, as of the Sept 27, 20 13 briefing, 317 UH-
72As were purchased. Is this correct.
4. AR 5279 at the second block shows UH 72s with headings and text that are
unintelligible, even with my magnifying glass. What are the headings, text and
numbers, and what is being represented.
ECF No. 123-1, at 1.
On July 27, 2016, the Government advised that a response to the court's July 22, 2016
inquiries would be filed by August 5, 2016. ECF N o. 124-1, at 2. On August 4, 2016, the
Govenunent informed the court that a response would not be fo1thcoming until August 12, 2016
and extended the voluntary stay until and including September 8, 2016. ECF No. 124-1, at 1. On
August 11 , 201 6, the Government filed a Notice Of Filing Response To The Court's Questions Of
July 12, 20 16, ECF No. 125, and attached thereto the August 10, 2016 Declaration of Ellis Golson,
Deputy Director, Aviation Capability Development and Integration, ECF No. 125-1.
II. DISCUSSION.
A. Standard Of Review.
Pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act,
Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), Congress authorized the United
States Court of Federal Claims to review challenges to agency decisions, pursuant to the standards
set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. See 28
U .S.C. § 1491(b)(4) ("In any action under this subsection, the courts shall review the agency's
decision pursuant to the standards set forth in section 706 of title 5."); see also 5
U.S.C. § 706(2)(A) ("The reviewing court shall ... hold unlawful and set aside agency action,
findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law[.]"); Banknote Corp. of Supp., Inc. v. United States, 365 F.3d 1345,
1350 (Fed. Cir. 2004) ("Among the various APA standards of review in section 706, the proper
standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court
shall set aside the agency action if it is 'arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.'") (citations omitted).
As the United States Court of Appeals for the Federal Circuit has held, the court's primary
responsibility is to determine whether the agency violated a federal statute or regulation in the
procurement process and whether any such violation was prejudicial. See Axiom Res. Mgmt. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (holding that "the disappointed bidder must
show a clear and prejudicial violation of applicable statutes or regulations") (internal quotation
marks and citations omitted); see also Banknote Corp. , 365 F.3d at 135 1 (holding, when
challenging a government contract procurement due to a violation of law or procedure, "the
disappointed bidder must show a clear and prejudicial violation of applicable statutes or
regulations") (citations omitted).
If no prejudicial violation of law or regulation is found, the court next is required to
determine whether the agency decision evidences a rational basis. See Savantage Fin. Servs.
Inc. v. United States, 595 F.3d. 1282, 1286 (Fed. Cir. 2010) (holding that a court "must sustain an
15
agency action unless the action does not evidence rational reasoning and consideration of relevant
factors") (quotations omitted); see also Emery Worldwide Airlines, Inc. v. United States, 264 F.3d
1071, 1086 (Fed. Cir. 2001) (holding that to meet the burden of showing that a sole-source award
lacks rational basis, the plaintiff must show: "(1) the agency's decision to conduct a sole-source
procurement process lacked a rational basis; (2) the agency's sole-source requirements lacked a
rational basis; or (3) based on the sole-source requirements, the selection of the sole-source
awardee lacked a rational basis") (emphasis added).
Finally, the court is required to ascertain whether a federal agency otherwise acted in an
arbitrary and capricious manner with respect to the procurement at issue. See Banknote Co1p., 365
F.3d at 1350 ("{A] reviewing court shall set aside the agency action if it is 'arbitrary, capricious,
an abuse of discretion."'). Courts have found an agency's decision to be arbitrary and capricious
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." Motor Vehicle Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
In this case, the parties filed Cross-Motions For Judgment On The Administrative Record
that require the court to conduct a proceeding like an expedited trial on the record. See RCFC
52.1; see also Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) ("[T]he
judgment on an [A]dministrative [R]ecord is properly understood as intending to provide for an
expedited trial on the record."). The existence of a material issue of fact, however, does not
prohibit the court from granting a motion for judgment on the administrative record, even if the
court has not conducted an evidentiary proceeding. Id at 1354 (holding that the court should make
"factual findings from the record evidence as if it were conducting a trial on the record").
B. Analysis And Rulings On AgustaWestland's February 1, 2016 Supplemental
Complaint.
1. Count I.
Count I of the Supplemental Complaint appears to allege that the Army's July 2014
announced intent to procure 110 UH-72A Lakota helicopters under the 2006 Contract violated the
Competition in Contracting Act ("CICA"), 10 U.S.C. § 2304(a), and FAR 6.3, that mandate full
and open competition. Supp. Compl. ~ 89-93. This count also appears to set forth two claims.
The first concerns the Army's purchase of 110 UH-72A Lakota helicopters, pursuant to the 2006
Contract options. Supp. Compl. ~ 90. The second concerns the Anny's decision to use the 2006
Contract to purchase UH-72A Lakotas for "initial pilot training helicopters." Supp. Compl. `` 90-
93.
Count I, however, fails to mention that AgustaWestland filed a bid protest in 2006 before
the GAO that was denied. See MD Helicopters, Inc.; AgustaWestland, Inc. B-298502, et al., 2006
CPD ~ 164 (Comp. Gen. Oct. 23, 2006). Therefore, any challenge to the 2006 Contract is now
barred by the Tucker Act's six year statute of limitations. See 28 U.S.C. § 2501 ("Every claim of
which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition
thereon is filed within six years after such claim first accrues.") (emphasis added). Therefore,
AgustaWestland is foreclosed from challenging any Army actions under the 2006 Contract, eight
16
years after it was awarded. Assuming arguendo, that jurisdiction is not an issue, the 2005 SOW 19
and the 2006 Solicitation20 explicitly lists "training support" as a potential mission of the UH-72A
Lakota helicopter. Therefore, the Army's purchase of the UH-72A Lakota helicopters and
subsequent use for training did not expand nor exceed either the 2005 SOW or the 2006 Solicitation
and did not violate FAR 6.3.21 See AT&T Commc'ns, Inc. v. Wiltel, Inc., I F.3d 1201, 1207 (Fed.
Cir. 1993) ("An important factor in determining the scope of the original competition is 'whether
the [S]olicitation for the original contract adequately advised offerors of the potential or the type
of changes during the course of the contract that in fact occurred, or whether the modification is
of a nature which potential offerors would reasonably have anticipated."' (quoting Neil R. Gross
& Co., 90--1 CPD~ 212 at 3 (1990))); see also Distributed Sols., Inc. v. United States, 539 F.3d
1340, 1346 (Fed. Cir. 2008) ("[A]dding work to an existing contract that is clearly within the scope
of the contract does not raise a viable protest under [28 U.S.C.] § 1491(b)(l)."); 27No. 3 VERNON
J. EowARDS, NASH & CtBINJC REPORT, SCOPE OF THE COMPETITION TEST: Is IT v ALID? ~ 12 (2013)
("CICA ... does not prevent modification of a contract by requiring a new bid procedure for every
change. Rather only modifications outside the scope of the original competed contract fall under
the statutory competition requirement.").
Nor did the Army's decision to purchase UH-72A Lakota helicopters for training under the
option provisions of the 2006 Contract reflect a "cardinal change," as Agusta Westland argued, but
failed to allege in the Supplemental Complaint. Compare Pl. Mot. JAR at 6-13, with Supp. Compl.
~ 88-117. With respect to the extension of the options, extension of the delivery date, accelerated
milestone payment schedules, and training MEPs, none of these modifications exceeded the 2005
SOW, the 2006 Solicitation, or the 2006 Contract. See I WILLISTON ON CONTRACTS § 5: 18 (4th
ed. 2011) ("When the optionee decides to exercise its option, it must act unconditionally and
according to the terms of the option, and as soon as the acceptance is so made, the optionor
becomes bound. Nothing less than an unconditional and precise acceptance will suffice unless the
optionor waives one or more of the terms ofthe option.") (emphasis added). The Administrative
Record evidences an "unconditional and precise acceptance" of the modifications by the Army
and Airbus and neither waived any of the option terms. AR Tabs 3a-3zh.
19
The June 22, 2005 SOW specified that among the "missions'' that the LUHs would
perform included: ~'test and training support." AR Tab 3, at 285 (emphasis added).
20
The 2006 Solicitation stated that the LUHs would be used for "test and training support."
AR Tab 34, at 3232 (emphasis added).
21
Although AgustaWestland failed to provide a specific citation within FAR 6.3, the court
interprets AgustaWestland to refer to FAR 6.30l(a) that provides, "Contracting without providing
for full and open competition or full and open competition after exclusion of sources is a violation
of statute, unless permitted by one of the exceptions in 6.302." 48 C.F.R. § 6.30l(a).
17
For these reasons, the court has detennined that the claims alleged in Count I of the
Supplemental Complaint must be dismissed. See RCFC 8(d)(1);22 12(b)(l); 12(b)(6).
2. Count II.
Count II of the Supplemental Complaint alleges that an August 13, 2013 briefing of the
Army's Chief of Staff and apparent approval of an October 2013 ARI, designating the UH-72A
Lakota helicopter as the Army's "Institutional Training Helicopter" (AR Tab 69A, at 5156)
violates the CICA, 10 U.S.C. § 2304(f)23 and the FAR 6.303, 6.304, and 6.305. Supp. Compl. ``
94-96.
The Government argues that the court does not have jurisdiction to adjudicate Count II of
the Supplemental Complaint, because the ARI was a "policy decision regarding the use and
deployment of its aviation assets" and that decision did not amount to a "procurement" or
"proposed procurement" under the Tucker Act or the CICA. Gov't Mot. To Dis. at 18. The July
22, 2016 Declaration of U.S. Anny Lieutenant Colonel Stephen 0. Murphy, proffered by the
Government after the Supplemental Complaint was filed, however, informed the court that, on
April 3, 2014, the Army issued Executive Order 109-14 which, in part, directed that "the [Army's]
Institutional Training Helicopter fleet is converted to UH-72As and the legacy TH-67 training
helicopter is divested." Compare ECFNo. 119-1, at 2 (7/22/16 Murphy Deel.), with AR Tab 69A,
at 5156. The effect of the April 3, 2014 Executive Order embodied the Atmy's decision to
standardize on the UH-72A Lakota helicopter. as the "only one responsible source," for all future
22
The court also found the allegations in Count I of the Supplemental Complaint to be far
from "simple, concise, and direct." RCFC 8(d)(l). Submitting ambiguous pleadings-later
"filling in the blanks" in briefs or argument-is a transparent and unwelcome litigation tactic.
23
Section 2304(t) of the CICA, in relevant part, provides:
(f)(l) Except as provided in paragraph (2), the head of an agency may not award a
contract using procedures other than competitive procedures unless-
(A) the contracting officer for the contract justifies the use of such
procedures in writing and certifies the accuracy and completeness of the
justification;
(B) the justification is approved ... (iii) in the case of a contract for an
amount exceeding $75,000,000, by the senior procurement executive of the agency
designated pursuant to section l 702(c) of title 41 (without further delegation) or in
the case of the Under Secretary of Defense for Acquisition, Technology, and
Logistics, acting in this capacity as the senior procurement executive for the
Department of Defense, the Under Secretary's delegate designated pursuant to
paragraph (6)(B); and
(C) any required notice has been published v.rith respect to such contract
pursuant to section 1708 of title 41 and all bids or proposals received in response
to that notice have been considered by the head of the agency.
10 u.s.c. § 2304(t).
18
LUH training helicopter procurements. See FAR 6.302-1. As such, the April 3, 2014 Executive
Order 109-14 was a quintessential procurement decision, as it determined "a need for property or
services." Distributed Sols., 539 F.3d at 1345 (quoting 41 U.S.C. § 403(2) (codified as amended
at 41 U.S.C. § 111)). Of course, the court does not have jurisdiction to adjudicate the Anny's
policy decision that it needs training helicopters or the number of helicopters required, but the
court has jurisdiction to adjudicate whether the Army's April 3, 2014 Executive Order 109-14, to
the extent that it standardized on the UH-72A Lakota helicopter as the "only one responsible
source" for all future LUH. training helicopter purchases, violated the CICA and the FAR. See
RAMCOR Servs. Group, Inc., 185 F.3d 1286, 1289 (Fed. Cir. 1999) ("As long as a statute has a
connection to a procurement proposal, an alleged violation suffices to supply jurisdiction [to the
United States Court of Federal Claims].").
A plaintiff contesting an award of a federal contract must establish that it is an "interested
party" to have standing under 28 U.S.C. § 1491(b)(l). See Myers Investigative & Sec. Servs.,
Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) ("[S]tanding is a threshold
jurisdictional issue."). The United States Court of Appeals for the Federal Circuit has construed
the term "'interested party' in section 1491(b)(l) ... in accordance with [CICA], 31 U.S.C. §§
3551-56." Rex Serv. Corp. v. United Slates, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Therefore, "to
come within the [United States] Court of Federal Claims' section 149l(b)(l) bid protest
jurisdiction, [the protester] is required to establish that it (1) is an actual or prospective bidder, and
(2) possesses the requisite direct economic interest." Id. In addition to establishing "interested
party" status, a protestor must show that the alleged errors in the procurement were prejudicial.
See Info. Tech. & Applications C01p. v. United States, 316 F.3d 1312, 13 19 (Fed. Cir. 2003)
("[B]ecause the question of prejudice goes directly to the question of standing, the prejudice issue
must be reached before addressing the merits."); see also Myers, 275 F.3d at 1370 ("[P]rejudice
(or injury) is a necessary element of standing."). Specifically, when challenging a sole source
award, "a disappointed party can establish prejudice either by showing: (1) proceeding without the
violation would have made the procurement official's decision to make a sole-source award rather
than to conduct a competitive bidding process irrational, ... and in a competitive bidding process,
the complaining party would have a substantial chance of receiving the award[;] or (2) proceeding
without the violation, the complaining party would have a substantial chance of receiving the sole-
source award[.]" Eme1y Worldwide Airlines, 264 F.3d at 1086 (citations omitted).
Agusta Westland' s economic interest in the procurement of the 16 helicopters at issue in
this bid protest is established. ECF No. 50, at 8-9 (5116/14 Letter From Robert LaBelle, CEO of
AgustaWestland North America to The Honorable Frank Kendall, Under Secretary of Defense).
And, after the 2006 Contract expired on June 30, 2016, AgustaWestland would have had a
substantial chance of being awarded a contract for the Army's additional requirements for LUH
training helicopters, but for the April 3, 2014 Executive Order 109-14's standardization and sole
source directive. As such, AgustaWestland has standing to request an adjudication of the claims
alleged in Count II, particularly since neither the court nor AgustaWestland knew about the
existence of the April 3, 2014 Executive Order 109-14, until the court received the July 22, 2016
Murphy Declaration. ECF No. 119-1.
To the extent that the April 3, 2014 Executive Order 109-14 intended to satisfy the
requirement of a justification review for other than full and open competition, several deficiencies
19
are apparent. First, the April 3, 2014 Executive Order 109-14 does not identify the "statutory
authority permitting other than full and open competition." 48 C.F.R. § 6.303-2(b)(4).24 Second,
the April 3, 2014 Executive Order 109-14 failed to include a determination that, "the anticipated
cost to the Governmenf' of standardizing on the UH-72A Lakota helicopter or that the cost could
be "fair and reasonable." 48 C.F.R. § 6.303-2(b)(7).25 To be sure, standardization can result in
efficiencies, particularly for purposes of interchangeable replacement parts and service. But, the
relevant inquiry is at what cost? See Luis Garicano & Richard A. Posner, Intelligence Failures:
An Organizational Economics Perspective, 19 J. EcoN. PERSPS. 151, 158 (2005) ("Unfortunately,
an organizational culture that is optimal in the current environment may become suboptimal when
the environment changes, and yet agents will be rationally reluctant to change the design ....
Once information channels and other organizing elements are created, a sunk investment has been
made that will constrain the organization's reaction to a new environment[.]"). After a thorough
review of the ARI and Appendices, the October 24, 2013 Briefing before the Chief of Staff of the
Army, and the April 3, 2014 Executive Order 109-14, the court found no acknowledgement of the
Army's legal obligation to issue a J&A to support its decision that "the Institutional Training
Helicopter fleet is converted to UH-72s" without "full and open competition," as required by FAR
6.303-1.26 AR Tab 69A, at 5154-5280; ECF No. 119~ 1. Although Congress was advised that the
Army intended to proceed with the ARI, which the Executive Order 109-14 implemented,
Congress was never informed that the Army intended to purchase the UH-72A Lakota helicopters,
without "full and open competition," nor did that authorization repeal the CICA nor modify it in
any way. ECF No. 12-2, at 2.
For these reasons, individually and collectively, the court has determined that the April 3,
2014 Executive Order 109-14, to the extent that it standardized on the UH-72A Lakota helicopters
as the Army's "only one responsible source" for Institutional Training Helicopters, violated the
CICA and above referenced FAR sections.
24
FAR 6.303-2(b)(4) provides, "As a minimum, each justification, except those for sole-
source 8(a) contracts over $22 million ... shall include ... (4) [a]n identification of the statutory
authority permitting other than full and open competition." 48 C.F.R. § 6.303-2(b)(4).
25
FAR 6.302-2(b)(7) requires, "[a] detennination by the contracting officer that the
anticipated cost to the Government will be fair and reasonable." 48 C.F.R. § 6.302-2(b)(7).
26
FAR 6.303-l(a) states:
(a) A contracting officer shall not commence negotiations for a sole source contract,
commence negotiations for a contract resulting from an unsolicited proposal, or
award any other contract without providing for full and open competition unless
the contracting officer-
( 1) Justifies, if required in 6.302, the use of such actions in writing;
(2) Certifies the accuracy and completeness of the justification; and
(3) Obtains the approval required by 6.304.
48 C.F.R. § 6.303-l(a).
20
3. Count III.
Count III of the Supplemental Complaint alleges that the Army's decision to purchase the
16 helicopters, at issue, pursuant to the December 10, 2015 J&A, does not comply with the CICA
and FAR 6.3. Supp. Compl. ~ 98-99. The Supplemental Complaint also alleges that the Anny
"has not provided any proper justification for using other than full and open competition or
demonstrated that any of the available exemptions to full and open competition apply." Supp.
Compl. ~ 100. Specifically, the "only one responsible source" exception, recognized at 10 U.S.C.
§ 2304(c)(l) and FAR 6.302-l(a)(2)(ii) is inapplicable, because AgustaWestland can provide
training helicopters that meet the Army's requirements. Supp. Compl. ~ 101. In addition, "there
are many alternative sources that can meet the Anny's initial pilot training requirements." Supp.
Comp. ~ l 02. Therefore, the December 10, 2015 J&A cannot represent that there are "no other
supplies or services [that] will satisfy [the Army's] requirements." Supp. Compl. ~ 102.
Since the court's jurisdiction to adjudicate the claims alleged in Count Ill and
Agusta Westland' s standing have been discussed and resolved in Count II, but for Paragraph 102
of the Supplemental Compiaint,27 the court will proceed to determine whether the Anny's
December 10, 2015 J&A complied with the CICA and applicable FAR regulations.
The December 10, 2015 J&A cites 10 U.S.C. § 2304(c)(l), as implemented by FAR 6.302-
l(a)(2)(ii}-(iii), as authority for proceeding with an other than full and open competition. AR Tab
33, at 2914. These FAR provisions permit the Department of Defense ("DoD") to procure
requirements on a sole source basis, when:
(ii) Supplies may be deemed to be available only from the original source in the
case ofa follow-on contract for the continued development or production ofa major
system28 or highly specialized equipment, including major components thereof,
27
The Supplemental Complaint alleges ''to the extent these 16 aircraft are to be used for
general service missions for the Air National Guard, the Anny could meet these needs with the
UH-72As that have been in the inventory of the regular Anny and that the Anny has announced
will be transferred to Ft. Rucker." Supp. Compl. ~ 102. AgustaWestland, however, does not have
standing to challenge logistical decisions of the Anny nor does the court have jurisdiction to
adjudicate this type of claim. Therefore, Paragraph 102 of the Supplemental Complaint must be
dismissed.
28
A system is a major system if.-
The Department of Defense is responsible for the system and the total expenditures
for research, development, test, and evaluation for the system are estimated to be
more than $185 million based on Fiscal Year 2014 constant dollars or the eventual
total expenditure for the acquisition exceeds $835 million based on Fiscal Year
2014 constant dollars (or any update of these thresholds based on a more recent
fiscal year, as specified in the DoD Instruction 5000.02, "Operation of the Defense
Acquisition System");
***
21
when it is likely that award to any other source would result in (A) substantial
duplication of cost to the Government that is not expected to be recovered through
competition. or (B) unacceptable delays in fulfilling the agency's requirements.
(iii) For DoD, ... services may be deemed to be available only from the original
source in the case of follow-on contracts for the continued provision of highly
specialized services when it is likely that award to any other source would result in
(A) substantial duplication of cost to the Government that is not expected to be
recovered through competition. or (B) unacceptable delays in fulfilling the
agency's requirements.
FAR 6.302-l(a)(2)(ii)--{iii) (emphasis added) (citations omitted).
The December 1O. 2015 J&A. however, does not state at any place that the proposed
procurement of the 16 UH-72A Lakota helicopters at issue is a "follow-on contract" of a "major
system" or of"highly specialized equipment." AR Tab 33. Instead, the December 10, 2015 J&A
states that this is a "new contract.'' AR Tab 33. at 2914;29 see also DoD 2014 Reprogramming
Request representing to Congress that the FY16 purchase ofUH-72A Lakota helicopters would be
under a "new negotiated contract") (emphasis added). Therefore, the statutory and regulatory
basis for the December 10, 2015 J&A, at a minimum, was misstated. See FAR 6.303-2(b)(4).
The December I 0, 2015 J&A also states that a principal reason for the Army not procuring
the 16 helicopters, at issue, via "full and open competition" is that Airbus "is the sole owner of the
exclusive technical data necessary to manufacture the [UH-72A Lakota helicopter] and aircraft
modifications necessary for the Anny's UH-72 fleet." AR Tab 33, at 2915. In addition, "[a)s the
OEM [Original Equipment Manufacturer], [Airbus] has exclusive ownership of all data rights
required to produce, maintain, and modify the UH-72[.]" AR Tab 33, at 2915. But, Airbus does
not have exclusive ownership of its Technical Data Package, because it is the OEM of the UH-
72A Lakota helicopter, but because Airbus will not license or sell its Technical Data Package to
anyone, including the Army. AR Tab 33, at 2917. That is Airbus' legal right. Nor does the Anny
have any basis for representing that Airbus "possesses the unique data, designs, special tooling,
equipment, and processes necessary to certify the UH-72 to FAA standards, which is essential to
(3) The system is designated a "major system" by the head of the agency
responsible for the system (10 U.S.C. 2302 and 41 U.S.C. 109).
48 C.F.R. § 2.101 (emphasis added).
29
Recognizing this fatal flaw in the December 10, 2015 J&A, the Govenunent repeatedly
misrepresented in its Reply Brief that the December 10, 2015 J&A concerned a "follow-on
contract/' instead of a "new contract." apparently thinking if it used the term ••follow-on contract"
enough, it would magically change the fact that the December 10, 2015 J&A describes this as a
"new contract." Gov't Reply at 2, 4, 9, 36, 38, 40-42. Cf Coast Prof'/, Inc. v. United States, Fin.
Mgmt. Sys., Inc., Nos. 2015-5077, 2015-5101, 2016 WL 3734671, at *4 (Fed. Cir. July 12. 2016)
(holding that "[e]ven when a new Task Order contracts for the same work previously performed
by the same contractor, ... this new Task Order is the award of a new contract").
22
meeting the Government's requirement" (AR Tab 33, at 2915), since Airbus considers that its
Teclmical Data Package, including data designs, is a trade secret, proprietary, and/or confidential
information of which no one, other than Airbus, has total knowledg~and certainly not the Anny.
ECFNo. 114.
More importantly, the Army's apparent lack of diligence and/or acquiescence to Airbus'
policy ofnot selling or licensing its Teclmical Data Package in 2006 does not provide a justification
for exempting a new procurement to full and open competition in 2016 and without considering
the potential increased cost that Airbus can charge for its intellectual property. As the Federal
Trade Commission has observed:
[T]he owner of a patented teclmology [or other intellectual property] necessary to
implement [a standard] may have the power to extract higher royalties or other
licensing terms that reflect the absence of competitive alternatives. . . . Consumers
of the products using the standard would be harmed to the extent those higher
royalties were passed on in the form of higher prices.
20 IO Submission of the United States to Working Party No. 2 on Competition and Regulation,
DAF/COMP/WP2/WD(2010)28, available at http://www.ftc.gov/sites/default/files/attachments/
us-subrnissions-oecd-and-other-international-competition-fora/usstanda:rdsetting. pdf (emphasis
added). The IGE, however, did not consider whether Airbus extracted or could extract a supra
competitive price on its UH-72A Lakota helicopters, because of the Technical Data Package.
In addition, the December 10, 2015 J&A represents that Airbus is ''the only contractor that
can maintain standardization of hardware across the various UH-72 [A Lakota helicopter]
configurations in the Army's fleet [and, l]oss of standardization would result in a significant
increase in logistics support requirements and training problems associated with operating and
maintaining the UH-72 aircraft." AR Tab 33, at 2915. This is true, because the Army made a
decision in 2006 to procure UH-72A Lakota helicopters under the 2006 Contract that "locked in"
the Army to Airbus' Technical Data Package for the life of the UH-72A Lakota helicopter, i.e.,
until at least 2035 or 2041. Compare PL Ex. 7, at 3 (Annual Aviation Inventory and Funding Plan
-Fiscal Years (FY) 2014-2043) ("UH-72: This is the newest fleet and will complete procurement
inFY14. This capability ·will be sustained throughFY35."),30 with 619116 TRat 37 (GOVERNMENT
COUNSEL: "Yes, Your Honor. [Until 2041] is the typical life span of these helicopter systems.").
The Army's 2006 decision to disregard the sunk or embedded costs of entering into a contract that
did not authorize the purchase or lease of Airbus' Teclmical Data Package is not at issue at this
juncture. But, FAR 6.302-1 (b)(2) provides that "the mere existence of [property] rights or
circumstances does not in and of itself justify the use of' the "only one responsible source"
30The court has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with this public document, that otherwise is subject to
Rule 20l(b) of the Federal Rules of Evidence ("Fed. R. Evid."), as it establishes the long life span
of the UH-72A Lakota helicopter, which is otherwise not discussed in the Administrative Record.
23
exception to "full and open competition." 48 C.F.R. § 6.302-1 (b)(2) (emphasis added). 31
Therefore, Airbus' decision not to sell or license its Technical Data Package to the Army for the
past decade is not a sufficient reason to justify this "new contract" as a sole source procurement.
The second major reason cited in the December 10, 2015 J&A for a non-competitive
procurement is that the
estimated duplication of costs ... in procuring and sustaining an alternative aircraft
is significant and is not expected to be recovered in its entirety. The estimated total
costs arc $[REDACTED) million and were determined via an [IGE] 32 ••• derived
by considering the costs of conducting the source selection, increased procurement
costs of an alternative aircraft, the impact to sustaining another aircraft separate
from the Lakota ... , as well as a recoup program of the TH-67 training aircraft to
ensure their availability through fielding of a new aircraft.
AR Tab 33, at 2916 (emphasis added). In the court's judgment, the IGE's estimate of the costs of
this proposed procurement is neither independent nor reliable.
Specifically, the IGE began its analysis representing that the "Scope of Work" was to:
"Determine the additional costs required to procure and sustain 16 alternate aircraft for the
remaining training requirement[,] [i]nclud[ing] the additional sustainment cost impact of
establishing a mixed training fleet." AR Tab 32, at 2908 (emphasis added). Instead of the "Scope
of Work" being framed to determine whether there would be additional costs and the amount, the
IGE simply assumed-or was instructed by the Army-to assume that there would be "additional
costs," with respect to purchasing these 16 helicopters, at issuet and having a "mixed" training
fleet. AR Tab 32, at 2908. The fact that the Scope of Work assumed the conclusion that the Army
needed to substantiate the December 10, 2015 J&A, without full and open competition, is not a
31
FAR6.302-t(b)(2) provides
The existence of limited rights in data, patent rights, copyrights, or secret
processes; the control of basic raw material; or similar circumstances, make the
supplies and services available from only one source (however, the mere
existence of such rights or circumstances does not in and of itselfjustify the use
of these authorities) (see Part 27).
48 C.F.R. § 6.302-l(b)(2).
32
The court was advised by Airbus' counsel during Oral Argument that the term
"Independent Government Estimate" is defined in FAR Part 15, but Airbus' counsel did not have
a copy of the FAR in hand and was unable to provide the court with a specific FAR citation. 6/9/16
TR at 55. The court's subsequent independent research, however, revealed that the tenn
"Independent Government Estimate" is not defined in the FAR, nor has the United States Court of
Appeals for the Federal Circuit nor GAO attributed any special meaning, so that the plain meaning
must govern. See BLACK'S LAW DICTIONARY 887 (10th ed. 2014) (defining independent as .. [n]ot
subject to the control or influence of another ").
24
surprise, since the IGE was prepared by a commercial firm that has only federal agencies as
customers, prominently listing the Army as a major customer, and touts that 'Tecolote Has
Successfully Supported Over 340 Higher Headquarters' Reviews since l 973." Milestone Reviews,
TECOLOTE RESEARCH, INC., https://www.tecolote.com/About/MilestoneReviews.htrnl (last visited
Aug. 12, 2016) (emphasis added).
In addition, in the Government's June 22, 2016 Supplement to the Administrative Record,
the court found an unmarked document, stating that $[REDACTED] was the price of "current
ROM for a[n] upgraded CPT from Airbus." AR Tab 63, at 5076. On July I, 2016, the Government
submitted a Declaration from Gregory W. Segraves, a Technical Manager for Tecolote Research,
Inc., who "develop[ed] [the] Independent Cost Estimates to support [the Army's] contract
actions." ECF No. 116-1, at 2 (emphasis added).33 Mr. Segraves was tasked \:vith preparing an
IGE of "the delta of costs that would be incurred if[the Am1y] were to use an alternative aircraft
instead of the UH-72A Lakota for a sole source follow-on acquisition[.]" ECF No. 116-1, at 2. In
performing this calculation, Mr. Segraves decided to include the cost for the UH-72A CPT as an
analogous cost for the alternative aircraft (AgustaWestland). To obtain this information, Mr.
Segraves asked Airbus' Lakota Product Office Manager for a ROM cost to purchase a new CPT,
with upgrades. The Airbus Product Office Manager apparently contacted another Airbus
employee who provided a $[REDACTED] million estimate that was used by Mr. Segraves in his
Microsoft Excel spreadsheet calculations. ECF No. 116-1 , at 3. Tecolote Research Inc. 's
certification, however, states that the IGE was "independently prepared" and "there has been no
discussion with any prospective sources." AR Tab 32, at 2910. We now know from Mr. Segraves'
Declaration that was not true. The IGE also did not consider the August 19, 2015 National
Conunission on the Future of the Army's conclusion that, although ''the decision to employ the
UH-72 as an Army primary trainer may be warranted, "[s]uitable and less expensive primary
trainers are available." PL Ex. 28, at 2.34 And, the IGE's $[REDACTED] million cost estimate
was based on a performance period of 25 years, i.e., from FY16 to FY41. AR Tab 32, at 2908.
The Total Delta Cost impact for FY16, i.e., one year according to the !GE's calculations, should
be no more than $31.4 million, assuming that estimate was not inflated, which is impossible to
ascertain without examining the underlying data and analysis. 35
The third major reason cited in the December 10, 2015 J&A for not submitting this
procurement for "full and open competition" is the IGE's estimate that there would be a three year
delay, if these 16 helicopters were competitively sourced. Compare AR Tab 33, at 2916, with AR
Tab 32, at 2908. The IGE, however, did not consider why it only took the Army from July 26,
33 The cow1 has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with the Segraves Declaration, which establishes that
the IGE certification was not accurate.
34
The court has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with this public document, which is otherwise subject
to Fed. R. Evid. 201(b).
35
The court's request for the underlying documents to substantiate the IGE's calculation
was completely ignored by the Government.
25
2005 to June 30, 2006---less than one year, to issue a SOW, a Solicitation, and enter into the 2006
Contract initially to procure up to 45 helicopters, but would now take three times that amount of
time to procure just 16 helicopters. Therefore, the time/cost of a competitive procurement should
be approximately one year, not three years as the IGE estimated or 25 months, as the December
10, 2015 J&A estimated. Compare AR Tab 32, at 2908, with AR Tab 33, at 2914. Finally, the
J&A concluded that the delay in seeking competitive bids for these 16 training helicopters
"introduces risk to the nation's security and safety." AR Tab 33, at 2916. As the court commented
during Oral Argument: "That is an overstatement[,] ifl've ever heard one." 6/9/16 TR at 28.
The J&A also represented that market research confirmed that Airbus was the only
potential source for UH-72A Lakota helicopters. AR Tab 33, at 2918- 19. In response to the
court's request to review the underlying market documents, the Government provided copies of
2014-2015 periodicals that contain no more information about procuring new training helicopters
than a high school student could find in a local library. ECF No. 112, at 3--4.36 The Government
also informed the court that market research was conducted by the Army's attendance at the 2015
AAAA Anny Aviation Mission Solutions Summit. ECF No. 112, at 3.37 But, this statement
provided no details about what the Army learned at this "Summit" and how it contributed to market
research due diligence required by FAR 6.303-2(b)(8). 38
Several other issues require comment. The Government contends that the court's request
to supplement the Administrative Record with the affidavit of the SCA and review his underlying
analysis (ECF No. 105) was extraneous to judicial review, because it reflects the Army's
"predecisional process." ECF No. 112, at 2-3.
This is not the first bid protest where the court has been informed by the Government that
the court can only consider an "Administrative Record" compiled by the Government. This is
tantamount to a defendant informing the plaintiff that it is entitled only to the discovery that the
defendant deems relevant. This approach turns the Federal Rules of Civil Procedure on its head
and in many cases undermines the court's ability to conduct meaningful review under the APA
standard. It is well-established that "the focal point for judicial review should be the
[A]dministrative [R]ecord already in existence, not some new record made initially in the
reviewing court." Campv. Pitts,411U.S.138,142(1973)(emphasisadded). And, as the United
States Court of Appeals for the Federal Circuit observed, "The 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." Axiom, 564 F.3d at 1380
36 The court has determined that it cannot conduct "effective judicial review," without
supplementing the Administrative Record with information confirming the nature and extent of
"market research" conducted by the Army to support the December 10, 2015 J&A.
37
Ibid.38
FAR 6.303-2(b)(8) provides, "As a minimum, each justification . . . shall include
... (8) [a] description of the market research conducted ... and the results or a statement of the
reason market research was not conducted." 48 C.F.R. § 6.303-2(b)(8).
26
(quotations omitted) (emphasis added). 39 In the court's judgment, the analysis conducted by the
SCA and/or his Staff Analyst in this case are part of the Administrative Record "in existence" and
"actually before the agency." Id. Therefore, review of such documents is well within the United
States Supreme Court's delineation of what is in the Administrative Record. The court recognizes
that the Government is entitled to assert the deliberative process privilege, where appropriate, but
39
The United States Court of Appeals for the Federal Circuit held in Axiom that the trial
court abused its discretion in not explicitly making a determination that it could not conduct
"effective judicial review" prior to determining "whether supplementation of the record was
necessary.'1 Axiom, 564 F.3d at 1381. Following Axiom, however, the Government has insisted
that the court must make a "supplementation was necessary" finding, whenever the court requests
a clarification, explanation, or other documentation to verify information contained in the
Administrative Record. See, e.g., ECF No. 125, at 1- 2. The cow1 reads Axiom to require that the
court make the "supplementation ... was necessary" determination in the merits decision, at the
same time it rules on whether or not supplementation of the record is indeed required. Otherwise,
the court could be U1Ulecessarily burdened with making "supplementation determinations," as it
conducts an ongoing review of the Administrative Record, which often is voluminous, as was the
case here. Moreover, this court has an informal rule that decisions on the merits should be issued
no later than three months after the last filing; but in bid protest cases that time usually is truncated.
As such, it would be physically impossible and a waste of judicial resources to require
"supplementation ... was necessary" rulings seriatim, instead of in the final merits decision, which
the court has done here.
On a different note, in subsequent cases citing Axiom, several important facts have been
overlooked. First, in Axiom, the bid protest concerned whether there was an organizational conflict
of interest. Necessarily, evidence of this type of FAR violation will not be found in the
Administrative Record. Second, the court supplemented the record with five declarations, four of
which were filed with and considered by the GAO in a prior related proceeding. Therefore, these
declarations, may have been subject to judicial notice under Fed. R. Evid. 20l(b) or automatic
inclusion in the record pursuant to RCFC Appendix C ~ 22(u). Third, in most cases subject to
APA review, the Administrative Record concerns an agency rulemaking or other comprehensive
agency proceedings, such as those conducted by the Federal Energy Regulatory Commission, the
Environmental Protection Agency, the Federal Trade Commission, or the Federal
Communications Commission. The Administrative Record in those proceedings include volumes
of agency analysis, public comment, and quasi-judicial hearings. Therefore, the qualitative nature
and reliability ofthose Administrative Records is far different from what the Government typically
proffers in bid protest cases. This too should be a relevant factor to be considered in determining
whether the trial court abused its discretion by supplementing the Administrative Record. The
court is aware of no federal statute or FAR regulation that states that the Administrative Record in
a bid protest should be identified and certified in the sole discretion of the federal agency being
challenged. But, in practice that is the reality in bid protest cases when the burden is shifted to the
trial court to establish a need, either for more agency records or extra-record evidence to discharge
its duty to conduct "meaningful judicial review." Administrative review in bid protest cases need
not entail the type of discovery required in complex federal civil matters, but a better balance needs
to be struck.
27
such documents should be made available for in camera inspection. Otherwise, the Government
can avoid judicial review as to whether the agency conducted any analysis, simply by asserting
privilege. Conclusory statements or a contracting officiaPs signature on a J&A does not provjde
the court with the ability to ascertain whether the agency's decision not to conduct a competitive
procurement was rational. See Savantage, 595 F.3d. at 1286 (holding that an agency action must
evidence rational reasoning and consideration of "relevant factors"). In this case, the Government
claimed such privilege as to the SCA. ECF No. 112, at 2-3. Because the Administrative Record
otherwise established that the December 10, 2015 J&A did not support the Army proceeding
without "full and open'' competition, and not to delay resolution of this bid protest, the court
decided not to order the Anny to produce the documents on which it claimed privilege. The court's
impression, however, is that the SCA, in fact, conducted no independent analysis, but instead
suggested only minor procedural revisions to the December 10, 2015 J&A identified by the SCA's
staff analyst, none of which reflected any competitive analysis. AR Tab 46, at 3 798-99; AR Tab
47, at 3801--03.
Finally, since the entire purpose of a J&A is to explain and justify why competition is not
required for a procurement, the Contracting Officer's decision that ''the justification [is] adequate
to support other than full competition," prior to the review and approval of Legal Counsel and the
SCAprimafacie was arbitrary and capricious. Compare AR Tab 33, at 2912 (showing that the
Contracting Officer approved the J&A on April 16, 2015), with AR Tab 45 at 3797 (stating that
the SCA did not approve the J&A until June 29, 2015), and AR Tab 33, at 2913 (showing that the
Legal Counsel did not approve the J&A until September 2, 2015), and AR Tab 33, at 2923
(showing that the Senior Procurement Executive approved the J&A without noticing this
oversight).
For these reasons, individually and collectively, the court has determined that the Army's
December 10, 2015 J&A and decision to purchase 16 LUHs, without "full and open" competition
violates 10 U.S.C. § 2304(a) and FAR 6.3.
4. Count IV.
Count IV of the Supplemental Complaint alleges that the Anny arbitrarily established as
"unduly restrictive of competition" the "UH-72A as the only helicopter that can meet the Army's
need for training or for additional [LUHs]" not subject to the 2006 Contract. Supp. Compl. 1[ 107.
In addition, Count IV also alleges that the Anny violated IO U.S.C.§ 2305(a)(l) by imposing "an
overly restrictive requirement on competition by limiting its procurement of at least 110, and as
many as 126 UH-72A helicopters as its initial pilot training helicopter to the exclusion of other
capable models." Supp. Compl. if 108.
To the extent the claim in Count IV, Supp. Compl. if~ 106--08, concerns the Anny's
purchase of 110 UH-72A Lakota helicopters, under options to the 2006 Contract, the court does
not have jurisdiction to adjudicate such a claim, since those option years were within the scope of
the 2006 Contract and do not raise a viable protest under § 1491 (b)(1 ). See Distributed Sols., 539
F.3d at 1346.
28
As for Count IV, Supp. Compl. , 109, the court has jurisdiction to adjudicate
Agusta Westland's claim that the Anny's decision to limit the procurement of 16 LUH only to UH-
72A Lakota helicopters, violates 10 U.S.C. § 2305(a)(l), but the court considers Count IV
redundant of Counts II and III.
For these reasons, the court has determined that Count IV must be dismissed. See RCFC
12(b)(l).
5. Count V.
Count V of the Supplemental Complaint alleges that the Anny "abandoned[] its obligatory
requirements development process in an effort to shortcut the procurement process." Supp.
Comp I. ~ 111 (emphasis added). AgustaWestland seeks a declaration that this decision, as well as
the Anny's failme to "create and validate an acquisition strategy for the acquisition, and by not
following the mandatory Capability Requirements process to document, validate and approve the
requirements for the Anny's training helicopter," violated some unspecified provision of the FAR
and Department of Defense Instruction ("DoDI") 5000.02.
AgustaWestland argues in the March 8, 2016 Motion For Judgment On The Administrative
Record that the Army failed to comply with FAR 17.207(t) when it exercised options under the
2006 Contract that "resulted in sole source contract»' without aJ&A analysis. Pl. Mot. JAR at 21-
23. But, not every provision of the FAR provides a private contractor a cause of action. The
United States Court of Appeals for the Federal Circuit has held that "[i]n order for a private
contractor to bring suit against the Govenunent for violation of a regulation, that regulation must
exist for the benefit of the private contractor." Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365
(Fed. Cir. 2000). In Freightliner, the United States Court of Appeals for the Federal Circuit held
that FAR l 7.207(f) "exists to ensure that the [C]ontracting [O]fficer acts in the best interest of the
government ... not ... for the benefit of the contractor." Id. FAR l 7.207(f) "does not proscribe
the [C]ontracting [O]fficer from taking a particular action, rather it provides the Government with
a mechanism for maintaining orderly business transactions." Id.To the extent Count V requests that the court interfere with the Anny's internal
development process or mandate that the Army initiate an acquisition strategy regarding acquiring
an Anny training helicopter, the court does not have jurisdiction to adjudicate matters of policy
under Section 1492(a)(l). Nor does AgustaWestland have standing to enforce DoDI 5000.02, as
like DoDI 5000.01, it is one of a group of"cautionary and informative regulations and directives
[that] provide any internal governmental direction." Am. Tel & Tel. Co. v. United States, 307 F.3d
1374, 1380 (Fed. Cir. 2002).
[D]irectives provide only internal governmental direction. . . . . [T]he fact
that a . . . practice is prohibited does not necessarily mean that it is therefore
actionable. The discipline to be administered in such cases is a responsibility of the
cognizant ... officials within the agency ... [and not] by this court.
Id. (citations omitted) (internal quotations omitted).
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Therefore, AgustaWestland does not have standing to request an adjudication of DoDI
5000.02.
For these reasons, the court has determined that Count V of the Supplemental Complaint
must be dismissed. See RCFC 12(b)(l).
III. AGUSTAWESTLAND IS ENTITLED TO INJUNCTIVE RELIEF.
To determine if an injunction is warranted, the court must consider whether: "(1) the
plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court
withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant
of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.'' Centech
Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009); see also FMC Corp. v. United
States, 3 F.3d 424, 427 (Fed. Cir. 1993) ("No one factor, taken individually, is necessarily
dfapositive . . . . [T]he weakness of the showing regarding one factor may be overborne by the
strength of others.") (emphasis in original); see also RCFC 65(a).
As to success on the merits, based on a review of the Administrative Record, as amended
and supplemented, the court has determined that Agusta Westland has established success on the
substantive merits as to Counts II and III of the Supplemental Complaint, except for Paragraph
102. See, e.g., Google, Inc. v. United States, 95 Fed. Cl. 661, 679 (2011) (determining that the
Department of Interior's Standardization "Determination and Findings" on which a Limited
Source Justification award was based would achieve "organizational lock-in," excluding another
competitor of the "opportunity to compete" in violation of the CICA and FAR 6.303-2(a)(4);
6.303-2(a)(7); 6.303-2(a)(l0), and 6.303-2(a)(l l )); see also Savantage Fin. Servs, Inc. v. United
States, 81 Fed. Cl. 300, 306---08 (2008) (determining that the Department of Homeland Security's
decision to use financial management software systems of two incumbent contractors by means of
a brand name justification to standardize the agency's financial software programs was an
improper sole source procurement that violated the CICA).
As to irreparable harm, without a preliminary injunction, an award of the 16 helicopters at
issue, without competition, will preclude AgustaWestland and other manufacturers of LUHs from
an opportunity to compete. See PGBA, LLC v. United States, 57 Fed. Cl. 655, 644 (2003) ("This
court has acknowledged that a lost opportunity to compete may constitute an irreparable harm[.]").
Agusta Westland and other potential competitors are not entitled to be awarded a contract, but they
are entitled to demonstrate the competitive benefits of their products, particularly since there may
have been technical advances and/or reduction in the cost of their products in the last decade, and
the life span of the UH-72A Lakota helicopters has been estimated to be between 21 and 25 years.
Therefore, it may be many years before another major purchase is made by the Army. The second
factor weighs in favor of an injunction.
As to the balance of hardships to the respective parties, the part of the April 3, 2014
Executive Order I 09-14, standardizing on the UH-72A Lakota helicopters as the "only one
responsible source" for the Army's Instruction Training Aircraft, and the December 10, 2015 J&A
violated the CICA and FAR. These violations prejudiced AgustaWestland's economic interests.
The Army could have began the process to purchase these 16 helicopters subject to "full and open
competition" in 2014 or earlier. Instead, the Army proceeded to "standardize" on Airbus' UH-
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72A Lakota helicopter, as the "only one responsible source" for procuring Institutional Training
Helicopters, endorsed a flawed IGE, and misrepresented the statutory and regulatory authorization
for the December 10, 2015 J&A, among other deficiencies. If there is a genuine need for the 16
LUHs at issue-or perhaps a larger number-the most efficient way for the Anny to proceed is to
commence a competitive procurement The Anny should be in a position to issue a solicitation,
evaluate bids, and issue a new contract in short order, if the Army acts with the same dispatch as
it awarded the 2006 Contract-to avoid any disruption in the training program. ECF No. 71-1, at
2 (indicating that the Army will be still receiving UH-72A Lakota helicopter purchases under the
2006 Contract until December 2017).
As to the public interest, in light of the reasons stated herein, the court has determined that,
the public interest is best served by the issuance of a preliminary injunction to ensure that the Army
complies with the CICA and FAR.
IV. CONCLUSION.
For reasons discussed herein, the Government's March 29, 2016 Motion To Dismiss, is
granted, in part, as to Counts I and IV and Paragraph 102 of Count III of the Supplemental
Complaint, but otherwise is denied. AgustaWestland's March 8, 201 6 Motion For Judgment On
The Administrative Record is granted as to Counts II and Ill, other than Paragraph 102 of the
Supplemental Complaint. All other pending motions are denied as moot.
In additio~ it is hereby ordered that the United States Army is preliminarily enjoined from
proceeding with or awarding a contract to Airbus for 16 UH-72A Lakota helicopters, pursuant to
the Executive Order 109-14 and/or the December 10, 2015 J&A For Other Than Full And Open
Competition, and this procurement is remanded for six months to the Army to: (1) proceed with
a competitive procurement; (2) reissue a new Justification and Approval For Other Than Full And
Open Competition, correcting the deficiencies identified herein and conducting a new Independent
Government Estimate; or (3) not proceeding with this procurement. It is further advised that
proceedings in this case are stayed during the remand, except that the Government will provide
the court with a report on the status of the remand every 90 days. See RCFC 52.2.
No costs.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
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