Iron Bow Technologies, LLC v. United States

In the United States Court of Federal Claims
BID PROTEST
No. 17-1250C
Filed Under Seal: February 16, 2018
Reissued for Publication: March 27, 2018 *
)
IRON BOW TECHNOLOGIES, LLC, )
)
Plaintiff, )
) Pre-Award Bid Protest; Judgment Upon
v. ) the Administrative Record; RCFC 52.1;
) Supplementing the Administrative
THE UNITED STATES, ) Record; Permanent Injunction.
)
Defendant. )
)
v. )
)
NCS TECHNOLOGIES, INC., )
)
Defendant-Intervenor. )
)
James C. Fontana, Esq., Counsel of Record, James C. D’Agostino, Esq., Jeffry R. Cook,
Esq., David B. Dempsey, Esq., Dempsey Fontana, PLLC, Tysons Corner, VA, for plaintiff.
Sheryl L. Floyd, Senior Trial Attorney, Douglas K. Mickle, Assistant Director, Robert E.
Kirschman, Jr., Director, Chad A. Readler, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; Ellen
Rothschild, Of Counsel, Dorothy M. Guy, Of Counsel, Ryan M. Warrenfeltz, Sr., Of Counsel,
Office of General Law, Office of the General Counsel, United States Social Security
Administration, Baltimore, MD, for defendant.
*
This Memorandum Opinion and Order was originally filed under seal on February 16, 2018 (docket
entry no. 76), pursuant to the Protective Order entered in this action on September 15, 2017 (docket entry
no. 16). The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted under the terms of the Protective Order. The parties filed a joint
status report on March 9, 2018 (docket entry no. 80) indicating the redactions they contend are warranted.
The government also filed a response to the joint status report, objecting to the redactions proposed by
plaintiff (docket entry no. 81). On March 27, 2018, the government filed an unopposed motion for leave
to file an illustration of plaintiff’s proposed redactions to the February 16, 2018, Decision (docket entry
no. 85). And so, the Court is reissuing its Memorandum Opinion and Order, dated February 16, 2018,
with the adopted redactions indicated by three consecutive asterisks within brackets ([***]).
Thomas K. David, Esq., Counsel of Record, Katherine A. David, Esq., Kenneth D. Brody,
Esq., David, Brody & Dondershine, LLP, Reston, VA; Andrew Shipley, Esq., Wilmer Cutler
Pickering Hale and Dorr LLP, Washington DC, for defendant-intervenor.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Plaintiff, Iron Bow Technologies, LLC (“Iron Bow”), brings this pre-award bid protest
action challenging the Social Security Administration’s (the “SSA”) decision to eliminate Iron
Bow’s quotation from consideration for award of a contract for desktop printers and related
supplies and services, because the proposed printers presented an unacceptable supply chain risk
to the government. Iron Bow has moved for judgment upon the administrative record pursuant
to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). See generally
Pl. Mot. In addition, Iron Bow has filed two motions to supplement the administrative record; a
motion to admit its proposed expert to the Protective Order; and a motion for leave to file a reply
brief in support of its motions to supplement the administrative record. See generally Pl. 1st
Mot. to Supp.; Pl. 2d Mot. to Supp.; Pl. Mot. to Admit; Pl. Mot. for Leave.
The government and the defendant-intervenor in this matter, NCS Technologies, Inc.
(“NCS”), have also filed cross-motions for judgment upon the administrative record pursuant to
RCFC 52.1. See generally Def. Mot; Def.-Int. Mot. The government has also moved to strike
certain declarations filed in support of Iron Bow’s motion for judgment upon the administrative
record. See generally Def. Resp.
For the reasons discussed below, the Court: DENIES Iron Bow’s motions to supplement
the administrative record; GRANTS the government’s motion to strike; DENIES Iron Bow’s
motion for judgment upon the administrative record; GRANTS the government’s and NCS’s
respective cross-motions for judgment upon the administrative record; DENIES as moot Iron
Bow’s motion to admit and motion for leave to file a reply brief in support of its motions to
supplement the administrative record; and DISMISSES the complaint.
2
II. FACTUAL AND PROCEDURAL BACKGROUND 1
A. Factual Background
In this pre-award bid protest matter, Iron Bow challenges the SSA’s decision to eliminate
its quotation from consideration for award of a contract for desktop printers and related supplies
and services, in connection with Request for Quotation No. SSA-RFQ-17-1030 (the “RFQ”),
because the proposed printers presented an unacceptable supply chain risk to the government.
Am. Compl. at ¶ 1; see also AR at 1: 1. Specifically, Iron Bow alleges that the SSA’s decision
to exclude its quotation from consideration for award should be set aside because the supply
chain risk assessment (the “SCRA”) upon which it was based is flawed and irrational. Am
Compl. at ¶¶ 2, 7; Pl. Mot. at 1-3, 10-32. As relief, Iron Bow requests that the Court declare the
SSA’s SCRA to be irrational and that the Court permanently enjoin the SSA from awarding any
contract under the RFQ until Iron Bow’s quote is properly evaluated. Am. Compl. at ¶ 7, Prayer
for Relief; Pl. Mot. at 3, 40. Alternatively, Iron Bow requests that the Court direct the SSA to
award the disputed contract to Iron Bow. Am. Compl. at ¶ 7; Pl. Mot. at 3.
1. The RFQ
On November 22, 2016, the SSA issued the RFQ for the purpose of awarding a single
blanket purchase agreement for various printers and associated equipment, support services, and
supplies. AR at 1: 1; 24: 4015. Under the terms of the RFQ, the SSA “intends to purchase
monochrome and color desktop printers; monochrome and color multi-function printers;
monochrome and color network printers; and associated equipment, support services, and
supplies,” to replace the existing printers housed at the agency’s offices located throughout the
United States and internationally. Id. at 24: 4015; see also id. at 1: 1.
Specifically relevant to this dispute, section E.5, phase 5 of the RFQ requires that the
SSA conduct a supply chain risk assessment of the apparent contract awardee—including an
assessment of any subcontractors, suppliers, distributors, and manufacturers involved in the
1
The facts recited in this Memorandum Opinion and Order are taken from the administrative record
(“AR”); plaintiff’s amended complaint (“Am. Compl.”); plaintiff’s motion for judgement upon the
administrative record (“Pl. Mot.”); and the government’s opposition and cross-motion for judgment upon
the administrative record (“Def. Mot.”). Except where otherwise noted, all facts recited herein are
undisputed.
3
awardee’s supply chain. Am. Compl. at ¶ 12; AR at 3: 266-67, 24: 4016. In this regard, section
E.5 provides that the SSA will evaluate the information provided to it by the apparent awardee—
along with any other information available to the SSA from any other source—“to assess the
supply chain risk associated with the apparent awardee’s quotation, to determine if the quotation
presents an unacceptable risk to SSA.” AR at 3: 266-67.
Section E.5 of the RFQ sets forth nine specific factors that the SSA may consider in
conducting the SCRA. Id. These factors focus upon, among other things: (1) the foreign
ownership or control of the apparent awardee, or its subcontractors or suppliers; (2) the degree to
which the apparent awardee and its subcontractors or suppliers maintain formal security
programs, that include personnel, information, physical, cyber security, and supply chain risk
management programs; and (3) the locations of the manufacturing facilities where the hardware
and software are designed, manufactured, packaged, and stored prior to distribution. Id. at 3:
266. The RFQ further provides that some of the other factors that the SSA may consider in
conducting the SCRA include: (1) the means and methods by which the hardware and software
would be delivered under the contract; (2) whether the proposed information system, hardware,
or software includes a service agreement required by the contract; and (3) the identity of the
entity to provide disposal service of any information system, hardware, or software required
under the contract. Id. at 3: 266-67.
Lastly, the RFQ provides that, “[s]hould the apparent awardee’s supply chain risk
assessment pose no or an acceptable amount of risk to the government, SSA shall make award to
that contractor.” Id. at 3: 267. If the SSA’s SCRA finds unacceptable risk to the government,
the RFQ requires that the SSA not award the contract to the apparent awardee and conduct a new
supply chain risk assessment for the next lowest-priced quotation. Id.
2. Iron Bow’s Quotation And The SCRA
Iron Bow timely submitted its quotation in response to the RFQ on January 11, 2017. Id.
at 16: 1921 n.1; see also id. at 6: 497-500, 11: 512-24; Am. Compl. at ¶ 14. Iron Bow’s
quotation proposed, among other things, that the printers to be provided to the SSA be
manufactured by Lexmark International, Inc. (“Lexmark”)—a Chinese company. AR at 11: 512-
24.
4
In a letter dated March 15, 2017, the SSA informed Iron Bow that its quotation was the
apparent awardee for the contract and the agency requested that Iron Bow submit information
concerning the SCRA. Id. at 6: 497-500, 24: 4016; see also Am. Compl. at ¶ 15. Iron Bow
timely submitted responses to the SSA’s information request on March 30, 2017. AR at 11: 512-
25; see also Am. Compl. at ¶ 15.
Thereafter, the SSA’s Office of Information Security conducted a supply chain risk
assessment of Iron Bow’s quotation. AR at 24: 4016. During the SCRA, the SSA learned,
among other things, that Lexmark is owned by three Chinese investment firms: Apex
Technologies Co. Ltd. (51% ownership), PAG Asia Capital (43% ownership), and Legend
Holdings (6% ownership). Id. at 12: 528, 549, 552. The SSA also learned that two of these
foreign firms could be connected to the Chinese government. Id. at 12: 528, 535-38.
In this regard, the SSA reviewed a Bloomberg Company Overview of Lexmark, which
indicated that PAG Asia Capital’s managing partner, [***], is a former senior official in China’s
Ministry of Trade and Economic Cooperation. Id. at 12: 535, 742, 744. The SSA also reviewed
the corporate website for Legend Holdings, which showed that the Chinese Academy of Sciences
is an investor in Legend Holdings. Id. at 12: 535, 746-49. In addition, the SSA reviewed several
congressional reports that indicated that the Chinese government has been engaged in espionage
activities aimed at the theft of sensitive information from United States corporations and the
United States Government. Id. at 12: 536-37, 1864-70.
In light of this information, the SSA concluded that Iron Bow’s reliance upon Lexmark as
its primary supplier of printer equipment presented an unacceptable security risk. Id. at 12: 536-
38. And so, the SSA’s contracting officer eliminated Iron Bow from award consideration due to
an unacceptable supply chain risk to the government. Id. at 13: 1915, 14: 1916-17, 24: 4016-17;
see also Am. Compl. at ¶ 16.
3. Iron Bow’s GAO Protest
On July 21, 2017, Iron Bow timely filed a protest before the Government Accountability
Office (the “GAO”) challenging the SSA’s decision to eliminate its quotation from further
consideration for award under the RFQ. AR at 16: 1920-35, 24: 4017; see also Am. Compl. at ¶
31. The GAO subsequently dismissed Iron Bow’s protest. AR at 22: 3679-80, 24: 4017; see
also Am. Compl. at ¶ 32; Iron Bow Technologies, LLC, B-414963 (Comp. Gen. Sept. 12, 2017).
5
4. The Supplemental SCRA And The
Contracting Officer’s Remand Decision
After Iron Bow commenced this action on September 13, 2017, the Court stayed and
remanded this matter to the SSA to: (1) consider Lexmark’s Committee on Foreign Investment
in the United States (“CFIUS”) National Security Agreement (the “NSA”) and related
attachments, in light of the RFQ’s SCRA provisions; and, if warranted, (2) reconsider the
agency’s recommendation that Iron Bow’s proposed printers pose an unacceptable supply chain
risk to the government. Order, dated Oct. 5, 2017; see also AR at 23: 3681-4012. At the
conclusion of the remand proceedings, the SSA issued a supplemental SCRA based upon the
information contained in the NSA and other information that the agency reviewed. AR at 23:
3681-4012.
In the supplemental SCRA, the SSA concluded that, among other things: (1) the CFIUS
process did not preclude the SSA from independently assessing the risk that a potential contract
poses to the agency; (2) the mere existence of a national security agreement did not imply that
CFIUS determined that there is no risk to federal agencies in doing business with an entity that
has entered into such a NSA; and (3) the SSA was entitled to make its own risk determination as
to whether contracting with Iron Bow—with Lexmark as a supplier—posed an unacceptable
security risk to the government Id. at 23: 3681-94.
The SSA also determined that, based upon a review of Lexmark’s NSA, the Chinese
government’s interest in Lexmark was greater than the SSA initially recognized. Id. at 23: 3691-
93. Specifically, the SSA found that Legend Holdings also holds an ownership interest in Apex
Technologies Co. Ltd., Lexmark’s majority owner. Id. at 23: 3692-93.
The SSA also found that another company which acts on behalf of the Chinese Academy
of Sciences—CAS Holdings—owns 29 percent of Legend Holdings. Id. 23: 3692-93, 3984-93.
And so, the SSA determined that purchasing printers manufactured by Lexmark would pose an
unacceptable supply chain risk to the government. 2 Id. at 23: 3694. In addition, the SSA found
2
The SSA also found that the purpose and authorities of the Committee on Foreign Investment in the
United States are narrowly focused on the review of foreign acquisition of United States businesses to
determine risk to national security and mitigating those risks. AR at 23: 3682-83. And so, the SSA
determined that this purpose was different from the purpose of the SSA’s supply chain risk assessment.
Id. at 23: 3683. The SSA also concluded that Lexmark’s National Security Agreement was not intended
6
that certain new Chinese national security and cybersecurity laws would increase the risk to the
government of purchasing equipment from Chinese-owned companies. Id. at 23: 3681-94
On December 21, 2017, the SSA’s contracting officer issued a decision that adopted the
recommendations contained in the supplemental SCRA and concluded that awarding a blanket
purchase agreement to Iron Bow for the purchase of Lexmark printers and supplies would
present an unacceptable supply chain risk to the government. Id. at 24: 4020.
B. Procedural History
Iron Bow commenced this post-award bid protest matter on September 13, 2017. See
generally Compl. 3 On September 13, 2017, Iron Bow filed motions for a preliminary injunction
and for a temporary restraining order, as well as a memorandum in support thereof, pursuant to
RCFC 65. See generally Pl. PI/TRO Mot.; Pl. PI/TRO Mem. On that date, plaintiff also filed a
motion for entry of a protective order. See generally Pl. Mot. for Prot. Order. The Court granted
plaintiff’s motion and entered a Protective Order on September 15, 2017. See generally Prot.
Order, dated Sept. 15, 2017.
On October 5, 2017, the Court stayed further proceedings and remanded this matter to the
SSA for the purpose of allowing the SSA to: (1) review Lexmark’s NSA and related attachments
in light of the RFQ’s SCRA provisions; and if warranted, (2) reconsider its recommendation that
the proposed printers would pose an unacceptable supply chain risk to the government in light of
the NSA and related attachments, pursuant to RCFC 52.2. See generally Order, dated Oct. 5,
2017; see also Def. Mot. to Stay.
On December 21, 2017, the government filed the SSA’s remand decision. See generally
Def. Status Rep., dated Dec. 21, 2017, Ex. 1 at 1-8. On January 5, 2018, Iron Bow filed a notice
of its intent to proceed in this matter and a request for an expedited hearing on its motions for a
temporary restraining order and for a preliminary injunction. See generally Pl. Notice.
On January 8, 2018, Iron Bow filed a supplemental brief in support of its motions for a
temporary restraining order and for a preliminary injunction. See generally Pl. Supp. Br. During
to mitigate supply chain risks that can be mitigated through the SSA’s procurement authorities. Id. at 23:
3684-91.
3
On January 12, 2018, Iron Bow filed an amended complaint. See generally Am. Compl.
7
a telephonic status conference held on January 10, 2018, the Court granted Iron Bow’s motion
for a temporary restraining order and issued a temporary restraining order enjoining the SSA
from awarding the contract at issue until January 24, 2018. See generally TRO, dated Jan. 10,
2018.
On January 16, 2018, the government filed the administrative record. See generally AR.
On that same date, Iron Bow filed a motion to admit its proposed expert to the Protective Order.
See generally Pl. Mot. to Admit.
On January 17, 2018, Iron Bow filed a motion to supplement the administrative record.
See generally Pl. 1st Mot. to Supp. On January 18, 2018, Iron Bow filed a motion for judgment
upon the administrative record and a motion for a permanent injunction. See generally Pl. Mot.
On January 19, 2018, Iron Bow filed a second motion to supplement the administrative record.
See generally Pl. 2d. Mot. to Supp.
On January 22, 2018, the government and NCS filed their respective cross-motions for
judgment upon the administrative record and responses and oppositions to Iron Bow’s motion for
judgment upon the administrative record and motion for a permanent injunction. See generally
Def. Mot.; Def.-Int. Mot. On that same date, the government filed an opposition to Iron Bow’s
motions to supplement the administrative record and a motion to strike. See generally Def. Resp.
On January 23, 2018, Iron Bow filed a reply brief in support of its motion for judgment
upon the administrative record and motion for a permanent injunction and a motion for leave to
file a reply brief in support of its motions to supplement the administrative record. See generally
Pl. Reply; Pl. Mot. for Leave. On January 24, 2018, the government filed a reply brief in support
of its cross-motion for judgment upon the administrative record. See generally Def. Reply.
The Court held oral argument on the parties’ pending motions on January 24, 2018. At
the conclusion of the oral argument, the Court issued an oral decision denying Iron Bow’s
motions to supplement the administrative record; granting the government’s motion to strike;
granting the government’s and NCS’s respective cross-motions for judgment upon the
administrative record; denying Iron Bow’s motion for judgment upon the administrative record;
denying Iron Bow’s motion for a permanent injunction; and dismissing the complaint. Tr. of
Oral Arg. at 83:6-16.
8
III. LEGAL STANDARDS
A. Bid Protest Jurisdiction
The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). This Court reviews agency actions in bid protest matters
under the “arbitrary and capricious” standard under the Administrative Procedure Act (the
“APA”). See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the APA).
Under this standard, an award may be set aside if: “‘(1) the procurement official’s decision
lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or
procedure.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)
(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332
(Fed. Cir. 2001)).
In this regard, the United States Court of Appeals for the Federal Circuit has explained
that:
When a challenge is brought on the first ground, the test is whether the contracting
agency provided a coherent and reasonable explanation of its exercise of discretion,
and the disappointed bidder bears a heavy burden of showing that the award
decision had no rational basis. When a challenge is brought on the second ground,
the disappointed bidder must show a clear and prejudicial violation of applicable
statutes or regulations.
Id. (internal citations omitted).
In reviewing an agency’s procurement decision, the Court also recognizes that the
agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977) (citations omitted). In addition, the Court should not substitute its
judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed. Cl. 663, 672 (1997).
And so, to prevail in a bid protest matter “‘[t]he protestor must show by a preponderance of the
evidence that the agency’s actions were either without a reasonable basis or in violation of
applicable procurement law.’” Gentex Corp. v. United States, 58 Fed. Cl. 634, 648 (2003)
9
(quoting Info., Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d,
316 F.3d 1312 (Fed. Cir. 2003)).
This standard “is highly deferential.” Advanced Data Concepts, Inc. v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “a reasonable basis for the agency’s
action, the court should stay its hand even though it might, as an original proposition, have
reached a different conclusion . . . .” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.
Cir. 1989) (citation omitted). But, if “the agency entirely fail[s] to consider an important aspect
of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence
before the agency,” then the resulting action lacks a rational basis and, therefore, is defined as
“arbitrary and capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d
1372, 1375 (Fed. Cir. 2009) (internal quotation marks omitted) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
B. Justiciability
In Baker v. Carr, the United States Supreme Court held that justiciability depends upon
“whether the duty asserted can be judicially identified and its breach judicially determined, and
whether protection for the right asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186,
198, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); see also Murphy v. United States, 993 F.2d 871, 872
(Fed. Cir. 1993). 4 The Federal Circuit has also held “that [a] controversy is ‘justiciable’ only if it
is ‘one which the courts can finally and effectively decide, under tests and standards which they
can soundly administer within their special field of competence.’” Voge v. United States, 844
F.2d 776, 780 (Fed. Cir. 1988) (quoting Greene v. McElroy, 254 F.2d 944, 953 (D.C. Cir. 1958),
rev’d on other grounds, 360 U.S. 474 (1959)); see also Antonellis v. United States, 723 F.3d
1328, 1334 (Fed. Cir. 2013); Adkins v. United States, 68 F.3d 1317, 1322 (Fed. Cir. 1995).
When a case presents a question that is constitutionally assigned to a political department—as
opposed to the judiciary—that question cannot be resolved before the Court. Compare Nixon v.
United States, 506 U.S. 224, 228-29 (1993) (quoting U.S. CONST. art. I, § 3, cl. 6) (holding that
4
Although the United States Court of Federal Claims is not an Article III court, the various justiciability
doctrines of Article III apply to this Court. Emery Worldwide Airlines, Inc. v. United States, 47 Fed. Cl.
461, 469 (2000); see also Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003); First
Hartford Corp. Pension Plan & Trust v. United States, 54 Fed. Cl. 298, 304 n.10 (2002). Justiciability
has no precise definition or scope. Fisher v. United States, 402 F.3d 1167, 1176 (Fed. Cir. 2005). But,
the doctrines of standing, mootness, ripeness, and political question are within its ambit. Id.
10
courts cannot review impeachment proceedings because Article I, Section 3 of the United States
Constitution gives the Senate the “‘sole Power to try all impeachments’”), with Baker, 369 U.S.
at 209, 226 (finding that Tennessee’s failure to redraw legislative districts every 10 years gave
rise to a justiciable question under the Fourteenth Amendment, since “the mere fact that the suit
seeks protection of a political right does not mean it presents a political question”). In other
words, a case that presents a question that is constitutionally assigned to a political department
rather than the judiciary is nonjusticiable.
The Supreme Court has identified six factors that the Court should consider to determine
whether a nonjusticiable political question is being presented, namely, whether there is: (1) a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3)
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; (4) the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of the government; (5) an unusual need
for unquestioning adherence to a political decision already made; or (6) the potentiality of
embarrassment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217; see also El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346,
1361 (Fed. Cir. 2004) (quoting Baker, 369 U.S. at 217).
C. Judgment Upon The Administrative Record
Generally, RCFC 52.1 limits this Court’s review of an agency’s procurement decision to
the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d
1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative
record already in existence.”). And so, unlike a summary judgment motion brought pursuant to
RCFC 56, “the existence of genuine issues of material fact does not preclude judgment upon the
administrative record” under RCFC 52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242
(2011) (citations omitted); RCFC 56. Rather, the Court’s inquiry is whether, “given all the
disputed and undisputed facts, a party has met its burden of proof based on the evidence in the
record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006).
11
D. Supplementing The Administrative Record
The Federal Circuit held in Axiom Resource Management that the “parties’ ability to
supplement the administrative record is limited,” and that the administrative record should only
be supplemented “if the existing record is insufficient to permit meaningful review consistent
with the APA.” Axiom, 564 F.3d at 1379-81; see also Caddell Constr. Co., Inc. v. United States,
111 Fed. Cl. 49, 93 (2013). The Supreme Court has also held in Camp v. Pitts that “the focal
point for judicial review should be the administrative record already in existence, not some new
record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). This
focus is maintained in order to prevent courts from using new evidence to “convert the arbitrary
and capricious standard into effectively de novo review.” L-3 Commc’ns EOTech, Inc. v. United
States, 87 Fed. Cl. 656, 671 (2009) (citations omitted).
This Court has interpreted the Federal Circuit’s directive in Axiom to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is
not permitted when the documents proffered are unnecessary for an effective review of the
government’s procurement decision. Id. at 672. And so, this Court has precluded
supplementation of the administrative record with declarations that contain “post-hoc contentions
of fact and argument.” Id.
E. Injunctive Relief
Lastly, under its bid protest jurisdiction, the Court “may award any relief [it] considers
proper, including declaratory and injunctive relief . . . .” 28 U.S.C. § 1491(b)(2); see also
Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether
to issue a permanent injunction, the Court considers:
(1) whether . . . the plaintiff has succeeded upon the merits of the case; (2) whether
the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3)
whether the balance of hardships to the respective parties favors the grant of
injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.
PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co.
v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary
injunction is essentially the same as for a permanent injunction with the exception that the
plaintiff must show a likelihood of success on the merits rather than actual success.”); see also
Centech Grp., Inc., 554 F.3d at 1037. In this regard, the Federal Circuit has held that:
12
No one factor, taken individually, is necessarily dispositive. If a preliminary
injunction is granted by the trial court, the weakness of the showing regarding one
factor may be overborne by the strength of the others. If the injunction is denied,
the absence of an adequate showing with regard to any one factor may be sufficient,
given the weight or lack of it assigned the other factors, to justify the denial.
FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted); but see Nat’l
Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that
a plaintiff who cannot demonstrate likely success upon the merits cannot prevail upon its motion
for preliminary injunctive relief). But, this Court has found success upon the merits to be “the
most important factor for a court to consider when deciding whether to issue injunctive relief.”
Dellew Corp. v. United States, 108 Fed. Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v.
United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007)); cf. Nat’l Steel Car, Ltd., 357 F.3d at 1325
(addressing a motion for a preliminary injunction); but see Contracting, Consulting, Eng’g LLC
v. United States, 104 Fed. Cl. 334, 353 (2012) (citations omitted) (“Although plaintiff’s
entitlement to injunctive relief depends on its succeeding on the merits, it is not determinative
because the three equitable factors must be considered, as well.”).
IV. LEGAL ANALYSIS
The parties have filed cross-motions for judgment upon the administrative record on the
issue of whether the SSA’s decision to exclude Iron Bow’s quotation from consideration was
reasonable and in accordance with the RFQ. Iron Bow argues in its motion for judgment upon
the administrative record that the SSA’s decision to exclude its quotation due to supply chain
risk concerns was irrational, because the SSA’s determination that Lexmark’s owners are
controlled by the Chinese government and linked to Chinese espionage are untrue and
unsubstantiated. See generally Pl. Mot.
The government counters that the Court should dismiss Iron Bow’s complaint, because
Iron Bow’s challenge of the SSA’s assessment of the supply chain risks associated with this
procurement presents a nonjusticiable political question. Def. Mot. at 15-22. The government
and NCS further argue that, even if the Court may judicially review the SSA’s supply chain risk
assessment, the administrative record in this matter shows that the agency’s decision to exclude
Iron Bow’s quotation was reasonable, because the RFQ affords broad discretion to the SSA to
conduct the supply chain risk assessment. See generally id.; Def.-Int. Mot.
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For the reasons discussed below, this matter is justiciable because the national security
interests implicated by the SSA’s supply chain risk assessment are appropriately addressed
within the context of the Court’s consideration of whether to grant injunctive relief in this bid
protest dispute. In addition, a review of the administrative record makes clear that Iron Bow has
not demonstrated that it is necessary to supplement the administrative record in this matter. The
administrative record also shows that the SSA conducted the SCRA in accordance with the terms
of the RFQ, and that the agency reasonably concluded that the printers proposed by Iron Bow
presented unacceptable risks to the government’s supply chain. And so, the Court: DENIES
Iron Bows motions to supplement the administrative record; GRANTS the government’s motion
to strike; DENIES Iron Bow’s motion for judgment upon the administrative record; GRANTS
the government’s and NCS’s respective cross-motions for judgment upon the administrative
record; DENIES as moot Iron Bow’s motions to admit and for leave to file a reply brief in
support of its motions to supplement the administrative record; and DISMISSES the complaint.
A. This Matter Is Justiciable
As a preliminary matter, the Court is not persuaded by the government’s argument that
this bid protest dispute presents a nonjusticiable political question. In its cross-motion for
judgment upon the administrative record, the government argues that the SSA’s assessment of
the supply chain risk associated with this procurement presents a political question that is
nonjusticiable, because the RFQ affords unfettered discretion to the SSA to decide whether Iron
Bow’s quotation presents an unacceptable supply chain risk to the government. Def. Mot. at 15-
22. And so, the government requests that the Court dismiss Iron Bow’s complaint. Id.
In Baker v. Carr, the Supreme Court identified six factors that the Court should consider
to determine whether a nonjusticiable political question is being presented, namely, whether
there is: (1) a textually demonstrable constitutional commitment of the issue to a coordinate
political department; (2) a lack of judicially discoverable and manageable standards for resolving
it; (3) the impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; (4) the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of the government; (5) an unusual
need for unquestioning adherence to a political decision already made; or (6) the potentiality of
embarrassment from multifarious pronouncements by various departments on one question.
14
Baker, 369 U.S. at 217; see also El-Shifa Pharm. Indus. Co., 378 F.3d at 1361 (quoting Baker,
369 U.S. at 217). Specifically relevant here, the government invokes the fourth factor—“‘the
impossibility of a court's undertaking independent resolution without expressing lack of the
respect due coordinate branches of the government’”—as the basis for its justiciability argument
here. Def. Mot. at 21-22 (quoting El-Shifa Pharm. Indus. Co., 378 F.3d at 1361).
This Court has recognized, however, that “when considering national security interests in
procurement cases, the Court has typically done so in determining whether to provide injunctive
relief after exercising jurisdiction and adjudicating the merits.” EOD Tech., Inc. v. United States,
82 Fed. Cl. 12, 18 (2008). In this bid protest dispute, the government’s national security interest
in preventing foreign interference with the Nation’s technologies is without dispute. Def. Mot. at
17-22; Pl. Resp. at 4. But, this important national security interest is most appropriately
addressed in this case within the context of the Court’s examination of whether to afford Iron
Bow any injunctive relief. EOD Tech., 82 Fed. Cl. at 18. And so, the Court declines to dismiss
the complaint upon the ground that Iron Bow’s claim in nonjusticiable.
B. Supplementation Of The Administrative Record Is Unwarranted
Because the Court concludes that it possesses subject-matter jurisdiction to consider this
bid protest dispute, the Court next examines whether it is appropriate to supplement the
administrative record. In this regard, it is well-established that the “focal point” of the Court’s
review of the SSA’s decision to exclude Iron Bow’s quotation ‘“should be the administrative
record already in existence, not some new record made initially in the reviewing court.”’ Axiom
Res. Mgmt., Inc., 564 F.3d at 1379 (quoting Camp, 411 U.S. at 142). And so, the administrative
record should only be supplemented in this case to correct mistakes and fill gaps “if the existing
record is insufficient to permit meaningful review consistent with the APA.” Id. at 1379-81; see
also L-3 Commc’ns EOTech, 87 Fed. Cl. at 672.
Iron Bow has not demonstrated that it is necessary to supplement the administrative
record in this case. Iron Bow seeks to supplement the administrative record with any documents
regarding written communications between the SSA and the United States Department of the
Treasury and any documents regarding any supply chain risk assessment that the SSA conducted
for other offerors in connection with the RFQ. See generally Pl. 1st Mot. to Supp. But, the
government persuasively argues in its opposition to Iron Bow’s motions to supplement that any
15
such documents are either, protected from disclosure by attorney client privilege or the work
product doctrine, or do not exist. Def. Resp. at 5-7. Given this, the Court must deny Iron Bow’s
motion to supplement the administrative record with these documents.
Iron Bow also improperly seeks to supplement the administrative record with four
declarations filed in support of its motion for judgment upon the administrative record. See
generally Pl. 2d. Mot. to Supp. A careful review of these declarations makes clear that these
documents have been created for use in this litigation and that the subject declarations were not
before the SSA when the agency conducted the SCRA and the supplemental SCRA. These
declarations also do not correct mistakes or fill gaps in the existing administrative record.
Axiom, 564 F.3d at 1379-81. And so, the Court must also deny Iron Bow’s request to
supplement the administrative record with these documents. For these same reasons, the Court
GRANTS the government’s motion to strike these declarations and any references to the
declarations in Iron Bow’s filings with the Court. See generally Def. Mot. to Strike.
C. The SSA’s Supply Chain Risk Assessment Was Reasonable
The administrative record before the Court shows that the SSA’s supply chain risk
assessment was reasonable and in accordance with the terms of the RFQ. In its motion for
judgment upon the administrative record Iron Bow raises four challenges to the SSA’s supply
chain risk assessment and to the supplemental SCRA. First, Iron Bow argues that the SSA
irrationally concluded that Lexmark’s owners are controlled by the Chinese government or
linked to Chinese espionage. Pl. Mot. at 10-18. Second, Iron Bow argues that the SSA
irrationally determined that Lexmark’s owners have access or influence over Lexmark’s design
and manufacturing process. Id. at 18-32. Third, Iron Bow contends that the SSA’s supply chain
risk assessment is internally inconsistent. Id. at 32-34. Lastly, Iron Bow contends that
Lexmark’s printers do not pose an unacceptable supply chain risk. Id. at 34-36. For the reasons
discussed below, Iron Bow’s claims are not substantiated by the administrative record. And so,
the Court DENIES Iron Bow’s motion for judgment upon the administrative record and
GRANTS the government’s and NCS’s cross-motions for judgment upon the administrative
record.
16
1. Iron Bow’s Claim That The SSA
Irrationally Concluded That Lexmark’s Owners
Are Controlled By China Is Unsupported By The Evidence
As an initial matter, Iron Bow’s claim that the SSA irrationally concluded that the owners
of Lexmark are controlled by the Chinese government, or linked to Chinese espionage, lacks
support in the administrative record. In this regard, the administrative record makes clear that
the SSA did not find that Lexmark was controlled by the Chinese government, or linked to
Chinese espionage, as Iron Bow suggests. Rather, the administrative record shows that the
agency reasonably concluded in the SCRA—and later in the supplemental SCRA—that there
were connections between the foreign owners of Lexmark and the Chinese government. AR at
12: 535-38, 23: 3691-93. And so, the SSA properly considered these connections in conducting
a supply chain risk assessment for Iron Bow’s quotation.
First, the administrative record makes clear that Iron Bow’s proposed subcontractor—
Lexmark—is owned by Chinese companies. In this regard, the administrative record shows that
Lexmark is owned by three Chinese companies: Apex Technologies Co. Ltd.; PAG Asia
Capital; and Legend Holdings. Id. at 12: 527-28, 549, 746, 23: 3691-93. The administrative
record also shows that one of Lexmark’s owners—Legend Holdings—also holds an ownership
interest in another owner of Lexmark—Apex Technologies Co. Ltd. Id. at 23: 3692-93. And so,
there can be no genuine dispute that Lexmark is a Chinese company.
Second, the administrative record also makes clear that the SSA did not find that
Lexmark’s owners are controlled by the Chinese government, or linked to Chinese espionage.
To the contrary, the plain terms of the RFQ show that the SSA’s supply chain risk assessment
identified potential risks to the government’s supply chain, due to, among other things, the
undisputed foreign ownership of Lexmark. Id. at 1: 56-57. In this regard, the RFQ provides that
the SSA may request information from Iron Bow about the degree of any foreign ownership in,
or control of, Iron Bow or its proposed subcontractors. Id. at 1: 56. And so, the SSA
appropriately requested and considered information about the foreign ownership of Lexmark,
consistent with the terms of the RFQ.
The record evidence also shows that, after the SSA considered information about
Lexmark’s foreign ownership, the agency reasonably concluded that there were supply chain
risks to the government due to the connections between Lexmark’s owners and the Chinese
17
government. For example, the SSA found in its initial SCRA that the managing partner of PAG
Asia Capital is a former senior official with China’s Ministry of Trade and Economic
Cooperation. Id. at 12: 528, 742. Iron Bow does not dispute the SSA’s finding. Pl. Mot. at 10-
13. The SSA also found that Legend Holdings is a state-owned company that is owned in part
by the Chinese Academy of Sciences. AR at 12: 746, 23: 3983, 3692-93. Again, Iron Bow does
not dispute this fact. Pl. Mot. at 13-17.
The administrative record also supports the SSA’s finding in the supplemental SCRA of
an even greater level of Chinese government ownership of Lexmark through Legend Holdings.
As discussed above, the SSA determined that Legend Holdings is also an investor in Apex
Technologies Co. Ltd., the majority owner of Lexmark. AR at 23: 3692-93. And so, the
administrative record makes clear that the SSA did not find that Lexmark was controlled by the
Chinese government, or linked to Chinese espionage. But the administrative record does show
that the SSA reasonably concluded that Lexmark is a foreign-owned company and that certain
connections exist between Lexmark’s owners and the Chinese government.
The evidence in the administrative record also supports the SSA’s finding of an
unacceptable supply chain risk to the government in this case, because of the Chinese
government’s engagement in cyberespionage activities. In this regard, the administrative record
shows that the SSA considered congressional reports finding that the Chinese government
actively engages in cyberespionage against the United States and that China has infiltrated
United States computer networks. Id. at 12: 536-37, 1865-66. During oral argument, Iron Bow
acknowledged that the Chinese government has been linked to cyberespionage. Tr. of Oral Arg.
at 48:9-20. The administrative record also shows that the SSA considered a Federal Bureau of
Investigation (“FBI”) liaison information report warning about the potential negative impact on
the United States’ interests of new Chinese national security and cybersecurity laws that could
enable Chinese security services to access sensitive proprietary information. AR at 23: 3693,
4008-09. Given the undisputed evidence in the administrative record regarding the Chinese
government’s engagement in cyberespionage activities against the United States and these new
laws, the SSA reasonably determined that Lexmark’s Chinese ownership presented unacceptable
risks to the government’s supply chain. Id. at 12: 528, 742, 746, 1865-66, 23: 3692-93. And so,
Iron Bow’s first objection to the SSA’s decision to exclude its quotation lacks evidentiary
support.
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2. The SSA Reasonably Found That
Lexmark’s Owners Could Influence Lexmark
Iron Bow’s claim that the SSA irrationally determined that Lexmark’s owners could
influence Lexmark—and that the agency improperly found that such concerns have not been
mitigated by Lexmark’s National Security Agreement—is similarly unsupported by the record
evidence. Pl. Mot. at 24-32. In the supplemental SCRA, the SSA determined, among other
things, that the approved business relations activities permitted under Lexmark’s NSA presented
a risk that Lexmark’s owners “may potentially have control over or influence in the components
used in Lexmark’s supply chain and used by Lexmark in manufacturing its printers and
supplies.” AR at 23: 3687.
There is no dispute that Lexmark entered into a National Security Agreement with the
United States Departments of Homeland Security and Defense pursuant to a process established
by the Committee on Foreign Investment in the United States. Id. at 23: 3698-724. The record
evidence also shows that the SSA considered Lexmark’s NSA in conducting the supplemental
supply chain risk assessment and that the agency reasonably concluded that this agreement did
not mitigate the SSA’s concerns about the potential influence of Lexmark’s owners on
Lexmark’s operations. Id. at 23: 3699-887; see also 50 U.S.C. § 4565. 5
In this regard, a review of Lexmark’s NSA shows that this agreement is not intended to
address or to mitigate supply chain risks in connection with government procurements.
Specifically, section 15.5 of Lexmark’s NSA provides that this agreement does not limit, alter, or
constitute a waiver of any other obligations imposed on Lexmark by the laws of the United
States—including any obligation to address concerns about potential supply chain risks. AR at
23: 3718. Executive Order 13456, which governs the CFIUS process, similarly makes clear that
nothing in that executive order impairs or affects the authority granted by law to the SSA to
conduct a supply chain risk assessment. Exec. Order No. 13456, 73 Fed. Reg. 4,677 (Jan. 23,
2008); see also Exec. Order No. 11858, 40 Fed. Reg. 20,263 (May 7, 1975). And so, the SSA
appropriately performed its own evaluation of the supply chain risks posed by Lexmark’s
5
The parties to the NSA are: Apex Technology Co. Ltd.; PAG Asia Capital Lexmark Holding Limited;
Shanghai Shuoda Investment Centre: Ninestar Holdings Company Limited; Foreign HoldCo, SARL;
Lexmark International, Inc.; and the United States Departments of Homeland Security and Defense. AR
at 23: 3699.
19
printers and the agency reasonably concluded that the risk that Lexmark’s owners could
influence Lexmark had not been mitigated by the company’s NSA.
3. Iron Bow’s Other Challenges To
The Supplemental SCRA Lack Support
Iron Bow’s other challenges to the SSA’s supplemental supply chain risk assessment
similarly lack evidentiary support. First, Iron Bow objects to the SSA’s consideration of China’s
new national security and cybersecurity laws in assessing whether Lexmark’s NSA sufficiently
prevents Lexmark’s owners from gaining access to the company’s proprietary information. Pl.
Mot. at 35 n.27. As discussed above, the administrative record makes clear that the SSA
considered these laws because the FBI issued a warning about the potential threat that these laws
posed to United States interests. AR at 23: 3693. Given this, the administrative record makes
clear that the SSA appropriately considered China’s new national security and cyber security
laws in assessing the risk to the government’s supply chain.
Iron Bow’s objection to the SSA’s finding that certain permitted communications
between Lexmark and its owners under the term of the NSA could threaten the government’s
supply chain is also unavailing. Pl. Mot. at 26-27. Iron Bow does not dispute that the NSA
permits the communications that are of concern to the SSA. Id.; see also AR at 23: 3709-11.
And so, the SSA’s concern that such communications could allow the owners of Lexmark to
access or influence the company’s manufacturing process is reasonable, given the plain terms of
the NSA and the extent of Lexmark’s foreign ownership. AR at 23: 3686-87.
Iron Bow’s challenge to the SSA’s finding of an unacceptable supply chain risk because
the owners of Lexmark can review the company’s financial information under the terms of the
NSA is equally unavailing. Pl. Mot. at 28-29. Again, Iron Bow does not dispute that Lexmark’s
financial information is regularly provided to its owners. Id. There can also be no dispute that
the RFQ contemplates a multi-year contract that would involve the manufacture of a substantial
number of new printers. AR at 1: 5. Given the nature and scope of this contract, and the terms
of Lexmark’s NSA, the SSA reasonably concluded that the ability to access Lexmark’s sensitive
financial information could, over time, permit Lexmark’s owners to learn about the location of
the facilities that Lexmark would use to manufacture printers and supplies for the SSA.
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Lastly, Iron Bow’s objections to the SSA’s findings that Lexmark could transfer its
software code to the company’s owners—and that Lexmark’s NSA raises concerns about
Lexmark’s VPN access, WEP WIFI usage, and facility security clearance—are also misguided.
Pl. Mot. at 29-32. In the initial SCRA, the SSA found that the large volume of printers to be
manufactured under the contract at issue could require that Lexmark manufacture its printers in
certain identifiable facilities, thereby, making the printers more vulnerable to manipulation. AR
at 12: 536. Given the multi-year nature of the contract at issue and the significant number of
printers to be manufactured under this contract, the SSA’s concerns about the possible transfer of
the software code for these printers and the level of security at Lexmark’s facilities are
understandable. Id. at 23: 3714-15 ([***]). In addition, Iron Bow does not explain why it would
be improper for the SSA to consider Lexmark’s use of VPN and WEP WIFI in evaluating supply
chain risks, in light of the broad discretion afforded to the SSA in conducting the supply chain
risk assessment under the terms of the RFQ. Pl. Mot. at 30-31; see also AR at 1: 57; 23: 3691.
And so, again, Iron Bow’s claims are simply unsubstantiated by the record evidence.
4. Iron Bow’s Unstated Evaluation Criteria
And Unequal Treatment Claims Are Misplaced
The Court is similarly unpersuaded by Iron Bow’s unstated evaluation criteria and
unequal treatment claims. In its motion for judgment upon the administrative record, Iron Bow
argues that the SSA imposed several new and unstated evaluation criteria in connection with the
RFQ when the agency conducted the supplemental SCRA. Specifically, Iron Bow argues that
the SSA improperly required that: (1) the SSA be a party to the NSA; (2) offerors have
unlimited, direct liability to the agency for any breaches of NSA provisions; (3) Lexmark have
an obligation not to transfer its software source code and hardware designs; (4) Lexmark not
allow any VPN access; (5) Lexmark not use WEP WIFI; and (5) the SSA take into consideration
China’s new cyber laws. Pl. Mot. at 24-26, 29-32, 35 n.27. But, as discussed above, section E.5
of the RFQ makes clear that the SSA has broad discretion in determining the criteria that the
agency will employ to evaluate supply chain risks. AR at 1: 57. And so, Iron Bow has not
shown that the SSA’s consideration of these requirements runs afoul of the terms of the RFQ.
Iron Bow also points to no evidence in the record to support its claim that the SSA
engaged in unequal treatment of offerors in conducting the supply chain risk assessment. In fact,
the government states that the only supply chain risk assessment that has been performed for this
21
contract, to date, is the supply chain risk assessment for Iron Bow’s quotation. Def. Resp. at 5-7.
Given this, Iron Bow’s unstated evaluation criteria and unequal treatment claims do not find
support in the administrative record.
5. The SCRA Is Not Internally Inconsistent
While on stronger footing, Iron Bow’s claim that the SSA’s supply chain risk assessment
should be set aside because the assessment is internally inconsistent is also not supported by the
administrative record. In this regard, Iron Bow argues that the SSA’s supply chain risk
assessment is irrational, because the agency found that there was no increased supply chain risk
to the government in the short-term if the SSA used Lexmark’s printers. Pl. Mot. at 32-34. The
government counters that the SSA’s finding in this regard is reasonable, because this finding is
based upon the fact that the Lexmark printers currently in stock at the agency had been
purchased before the change in Lexmark’s ownership. Def. Mot. at 32-33. And so, the
government further argues that these existing printers pose no increased risk to the government.
Id.
The Court does not find any evidence in the administrative record to establish that all of
the Lexmark printers currently in the SSA’s inventory were purchased before the change in
Lexmark’s ownership. See generally AR. But, as discussed above, the administrative record
does make clear that the multi-year contract at issue in this dispute is expected to involve the
manufacture of a substantial number of new printers. AR at 1: 5. Given this evidence, the
administrative record does show that the SSA reasonably concluded that the government’s
supply chain risks with respect to the large volume of new Lexmark printers could increase with
the passage of time. Id. at 12: 536.
6. Iron Bow’s Claim That Lexmark’s Printers Do Not
Pose An Unacceptable Supply Chain Risk Is Unavailing
As a final matter, the Court is also unpersuaded by Iron Bow’s claim that Lexmark’s
printers do not pose an unacceptable supply chain risk to the government because there have
been no reports that these printers pose a security vulnerability. Pl. Mot. at 34-36. As discussed
above, the contract at issue in this dispute involves the manufacture of a large volume of printers
over a period of several years. And so, the fact that no security vulnerabilities have been
confirmed with regards to these printers, to date, does not render the SSA’s supply chain risk
22
assessment of potential risk during the course of this contract irrational. Given this, the Court
must reject Iron Bow’s final objection to the SSA’s supply chain risk assessment.
D. Iron Bow Is Not Entitled To Injunctive Relief
Because Iron Bow has not prevailed upon the merits of any of its challenges to the SSA’s
supply chain risk assessment, Iron Bow has not demonstrated that it is entitled to permanent
injunctive relief. Cf. Altana Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed.
Cir. 2009) (citing Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir.
2001)) (“Although the factors are not applied mechanically, a movant must establish the
existence of both of the first two factors to be entitled to a preliminary injunction.”); Nat’l Steel
Car, Ltd., 357 F.3d at 1324-25 (finding that a party that cannot demonstrate likely success upon
the merits cannot prevail upon its motion for preliminary injunctive relief). In its motion for
judgment upon the administrative record, Iron Bow requests that the Court permanently enjoin
the SSA from awarding any contract under the RFQ until the agency conducts a new supply
chain risk assessment of Iron Bow’s quotation. Pl. Mot. at 36-40. But, as discussed above, the
record evidence in this matter shows that the SSA’s decision to exclude Iron Bow’s quotation
was reasonable and consistent with the RFQ. And so, the Court must DENY Iron Bow’s request
for permanent injunctive relief.
V. CONCLUSION
In sum, Iron Bow’s complaint challenging the SSA’s supply chain risk assessment
presents a justiciable claim that this Court may consider. Nonetheless, Iron Bow has not
demonstrated that it is necessary to supplement the administrative record in this matter, and the
administrative record also shows that the SSA conducted its supply chain risk assessment in
accordance with the terms of the RFQ and that the agency reasonably concluded that Iron Bow’s
quotation presented an unacceptable supply chain risk to the government. Because the record
evidence shows that the SSA’s decision was reasonable, and in accordance with the terms of the
RFQ, the Court will not set aside the SSA’s sound decision.
In light of the foregoing, the Court:
1. DENIES Iron Bow’s motions to supplement the administrative record;
2. GRANTS the government’s motion to strike;
23
3. DENIES Iron Bow’s motion for judgment upon the administrative record;
4. GRANTS the government’s and NCS’s respective cross-motions for judgment upon
the administrative record;
5. DENIES as moot Iron Bow’s motions to admit and for leave to file a reply brief in
support of its motions to supplement the administrative record; and
6. DISMISSES the complaint.
It is further ORDERED that the clerk shall STRIKE the declarations filed in support of
Iron Bow’s motion for judgment upon the administrative record, dated January 18, 2018.
Judgment shall be entered accordingly.
Each party shall bear their own costs.
Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on
September 15, 2017. This Memorandum Opinion and Order shall therefore be filed UNDER
SEAL. The parties shall review the Memorandum Opinion and Order to determine whether, in
their view, any information should be redacted in accordance with the terms of the Protective
Order prior to publication. The parties shall FILE a joint status report identifying the
information, if any, that they contend should be redacted, together with an explanation of the
basis for each proposed redaction, on or before March 9, 2018.
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge
24