RHINOCORPS LTD. CO., v. USA

Filing 73

REISSUED PUBLISHED OPINION originally filed on Apr. 7, 2009, as corrected -- granting in part plaintiff's motion for preliminary injunction. Signed by Judge Christine O.C. Miller. (smg)

R H I N O C O R P S LTD. CO., v. USA

D o c . 73

In the United States Court of Federal Claims
N o . 08-410C (O rig in a lly Filed April 7, 2009; Withdrawn and Reissued as Corrected May 15, 2009 n u n c pro tunc to April 7, 2009) *********************** RHINOCORPS LTD. CO., Plaintiff, v. T H E UNITED STATES, Defendant. *********************** * * * * * * * * * * * * * P re -a w a rd bid protest; 28 U.S.C. § 1491(b)(1) (2006); preliminary in ju n c tio n ; small-business seta sid e ; irreparable harm; undue h a rd s h ip ; mootness; whether d e c is io n not to issue follow-on c o n tra c t as small business seta s i d e violates 48 C.F.R. (FAR) § 19.502-2(b) (2006).

R o s s L. Crown, Albuquerque, NM, for plaintiff. C o u rtn e y E. Sheehan, Washington, DC, with whom was Deputy Assistant Attorney G e n e ra l Michael F. Hertz, for defendant. Maj. Christopher L. McMahon, United States Air F o rc e Legal Operations Agency, Arlington, VA, of counsel. MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF M I L L E R , Judge. B ef o re the court after argument is plaintiff's renewed motion for a preliminary in ju n c tio n in this pre-award bid protest. 1/ The United States Air Force ("the Air Force") d e c id e d not to solicit a small business set-aside follow-on contract after the expiration of p la in tif f 's contract. Plaintiff challenges this decision as unreasonable and in violation of

1/ On March 31, 2009, plaintiff also renewed its application for a temporary restrain ing order, which is moot in view of the disposition of its motion for a preliminary in ju n c tio n .

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a p p lic a b le procurement law. This is another iteration in an old pre-award bid protest filed in June 2008; transferred to the undersigned on September 19, 2008; and subject to aging and d e f erre d ruling due to new developments in controlling precedent governing jurisdiction and a u g m e n ta tio n of the administrative record as recently as March 30, 2009. BACKGROUND T h e following facts are the same, unless otherwise noted, as those recited in the earlier o p in io n in RhinoCorps Co. v. United States, 85 Fed. Cl. 712, 713-14 (2009) (order granting, in part, motion to dismiss), withdrawn and reissued (May 15, 2009), slip op. at 2-4. R h in o C o rp s Ltd. Co. ("plaintiff") is a small business incorporated in New Mexico. Plaintiff f ile d suit against the United States for problems stemming from acquisition of services that the Air Force had procured from plaintiff under an expired contract (the "ARSS contract"). 2 / See Complaint for Declaratory Judgment and Injunctive Relief filed June 3, 2008, ¶¶ 2-3. O n May 29, 2003, what is now called the 709th Armament System Squadron (the " A R S S " ) , an agency of the Air Force, awarded the ARSS contract for programmatic services s u p p o r tin g weapon systems development to plaintiff through a competitive small business set-aside . Compl. ¶ 4. The contract incorporated by reference 48 C.F.R. (FAR) § 52.219-6 (2 0 0 6 ), setting aside acquisitions for qualifying small businesses. Also incorporated by re f e re n c e was FAR 52.219-8, which implements a policy to allow qualifying small b u s in e s s e s the maximum opportunity to participate in performing federal contracts. FAR 1 9 .5 0 2 -2 (b ) applied, as well, and mandates that a contract with the value and performance c h a ra c te ris tic s of the ARSS contract would be awarded to a small business upon an agency d e te rm in a tio n that at least two responsible small businesses would be reasonably expected to submit offers. This regulation is the centerpiece of this litigation. Plaintiff, with the h i g h e st rated technical proposal and the lowest proposed price, secured award. Plaintiff a g re e d to a two-year contract term, with three one-year option periods. The ARSS contract e x p ire d on May 29, 2008. Compl. ¶ 4. O n January 24, 2008, the ARSS contracting officer announced through a commercial p roc u rem en t tracking service, INPUT Federal Technology Opportunities, that plaintiff's A R S S contract would not be recompeted, but would be "fulfilled through an ongoing, current co n trac t out of another Contracting Office." Id. ¶ 16 (quoted source not cited in original).

2/ The contract had a ceiling of over $17 million. It covered labor, supplies, h a rd w a re , materials, travel, and other direct costs associated with the Nuclear Weapons and C o u n te rp ro lif e ra tio n Agency. See Complaint for Declaratory Judgment and Injunctive Relief f ile d June 3, 2008, ¶¶ 4-5. 2

O n February 22, 2008, following plaintiff's submission of a Freedom of Information Act (" F O IA " ) request probing the Air Force's decision not to recompete the requirements c o v e re d by the ARSS contract, representatives for plaintiff and the Air Force met regarding a possible follow-on to the ARSS contract. Plaintiff alleges that the Air Force stated that "it w a s not unhappy with [plaintiff's] performance," but "it was not required to maintain the w o rk that is the subject of the ARSS Contract as a small business set-aside." Id. ¶ 19. F o llo w in g another FOIA request, the parties met again on March 19, 2008. Plaintiff alleges t h a t the Air Force had a legal obligation to continue this procurement through the small b u sin e ss set-aside program. The Air Force disagreed, explaining that the ARSS requirements h a d changed. According to plaintiff, this was the first notice by the Air Force that change-ofc irc u m s ta n c e s prompted the decision not to solicit a follow-on contract. Id. ¶ 21. By letter to Secretary of the Air Force dated March 19, 2008, Rep. Heather Wilson q u e stio n e d why the ARSS contract had been moved to a large business and whether the A R S S contract could be extended to allow for an issuance of a request for proposals for a f o llo w -o n contract. Id. ¶ 25. The Air Force responded by letter dated April 17, 2008, stating that reorganizations within the Air Force, among other developments, rendered plaintiff's p ro g r a m m a tic services no longer necessary and that support would be provided by g o v ern m en t personnel through on-going non-small-business contractors. Id. ¶¶ 26(b), (c). P la in tif f objected to the Air Force's decision not to solicit a follow-on contract to the expired A R S S contract. Id. ¶ 23. In its April 17, 2008 response, the Air Force attributed its need for a "highly skilled, te c h n ic a l expertise across a broad spectrum only on an as-needed basis" as another ju stif ic a ti o n to redistribute the ARSS contract requirements. Id. ¶ 26(d). To allow small b u s i n e s s contractors to compete, the ARSS would conduct market research by means of a " S o u rc e s Sought Synopsis" to determine whether a follow-on contract was needed. Id. ¶ 26(e). Plaintiff was encouraged to respond to the Sources Sought Synopsis, id. ¶¶ 26(e), (f ), and plaintiff alleged that it "intend[ed] to submit a response," id. ¶ 28. The Sources S o u g h t Synopsis was posted on May 6, 2008, id. ¶ 28; responses were due on June 4, 2008, id .; and plaintiff commenced this action on June 3, 2008. P lain tiff marshaled an array of charges to indict the Air Force's decision not to solicit sm a ll businesses for a follow-on contract to the ARSS contract as contrary to law. Compl. ¶ 37. Plaintiff's primary contention was that diverting the duties of the ARSS contract v io la te s FAR 19.502-2(b), which requires contracting officers to set aside acquisitions over $ 1 0 0 ,0 0 0 .0 0 for small business participants upon a determination that a reasonable e x p e c ta tio n exists that at least two responsible small business concerns will submit offers. Id . ¶ 37(i). Plaintiff asserted that the transfer of duties was "pretextual" and that the Air F o r c e lacked legitimate motivation for determining not to issue a new solicitation identical 3

to the expired ARSS contract. Id. ¶¶ 39(a), (b). Plaintiff leveled the charge that the Air F o r c e did not announce that the ARSS requirements had changed until after plaintiff c o n f ro n te d the Air Force with the "legal authority concerning its obligation to maintain the s m a ll business set-aside program represented by the ARSS Contract." Id. ¶ 39(a). On June 3 , 2008, plaintiff filed suit in the United States Court of Federal Claims for declaratory and in ju n c tiv e relief, with jurisdiction predicated on 28 U.S.C. §1491(b) (2006), "reversing" the A ir Force's decision not to solicit a follow-on contract and not to extend plaintiff's contract u n til the decision required by law had been made. Id. ¶¶ 1, 42. S u b m itte d with defendant's supplemental brief filed on November 17, 2008, was the A ir Force's "Determination and Findings for the Unilateral Decision to use Full and Open C om petitio n for the 709 Nuclear Systems Squadron (NSS) Counter-proliferation and Nuclear W e a p o n Requirement" (the "D&F") (undated). Defendant offered the D&F as evidence that p la in tif f 's claims relating to the violation of small-business procurement regulations was m o o t because the Air Force had complied with the requirements of FAR 19.502-2(b) finding th a t no reasonable expectation existed that the Air Force would receive offers from at least t w o responsible small businesses. Def.'s Br. filed Nov. 17, 2008, at 4. Therefore, C o n tra c tin g Officer Shirley D. Lindom determined that "[i]t is in the best interest of the g o v e rn m e n t to have full and open competition to for this acquisition." Id. Ex. A at 3. P la in tif f disputed the factual basis for the Air Force's conclusion in the D&F and a d v a n c e d that this report was merely submitted in an attempt to cover up the fact that the Air F o r c e either failed to initiate timely a small business follow-on process or determined that I T T - A E S could perform the services cheaper than a small business. O n January 28, 2009, this court issued a decision granting defendant's motion to d is m is s for lack of subject matter jurisdiction with respect to plaintiff's claim for diversion o f work from the ARSS contract and otherwise denied defendant's motion. RhinoCorps, 85 F ed . Cl. at 723-24, withdrawn and reissued (May 15, 2009), slip op. at 17. Defendant's m o tio n to dismiss plaintiff's claim on the merits was denied because plaintiff had pleaded s u f f ic ie n t facts to establish that the Air Force's D&F, in fulfillment of FAR 19.502-2(b), was u n re a so n a b le . Id. A n order entered on February 10, 2009, following a scheduling conference held that d a te , called for simultaneous briefing on cross-motions on the administrative record to be c o m p le te d on May 18, 2009. On March 25, 2009, at the request of plaintiff, the court held a telephonic status c o n f ere n c e to discuss developments that had taken place in the subject procurement since the c o u rt 's last involvement on February 10, 2009. On this same date, plaintiff filed an 4

A m e n d m e n t to and Renewal of Application for Temporary Restraining Order and P r e lim in a ry Injunction. Plaintiff had learned on March 5, 2009, that the Solicitation for the N S S procurement had been issued. 3/ See Supplemental Affidavit of Ross L. Crown, Mar. 3 1 , 2009, ¶ 7. By order entered on March 26, 2009, the court ordered expedited briefing on p la in tif f 's renewed motion for interim injunctive relief. On February 23, 2009, the Air Force is s u e d Solicitation No. FA9453-09-R-0001 (the "Solicitation") for full and open competition f o r the procurement of services for the 709th NSS Counterproliferation and Nuclear Weapon re q u ire m e n t (the "NSS procurement"). The Solicitation specified that all proposals must be re c e iv e d no later than March 25, 2009, at 12:00 p.m. M.D.T. DISCUSSION O n request for preliminary injunctive relief, the court must weigh the following four f a cto rs : (1) the likelihood of plaintiff's success on the merits; (2) irreparable harm to plaintiff i f the injunction is not granted; (3) the balance of hardships on all the parties; and (4) the p u b lic interest. Erico Int'l Corp. v. Vutec Corp., 516 F.3d 1350, 1353-54 (Fed. Cir. 2008) (v a c a tin g trial court's grant of preliminary injunction); see also Abbott Labs. v. Sandoz, Inc., 5 4 4 F.3d 1341, 1344-45 (Fed. Cir. 2008) reh'g and reh'g en banc denied (Feb. 23, 2009) (a f f irm in g trial court's grant of preliminary injunction). No single factor is determinative, a n d "the weakness of the showing regarding one factor may be overborne by the strength of the others." FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). T o demonstrate a likelihood of success on the merits plaintiff must prove that the a g e n c y's decision was arbitrary, capricious, an abuse of discretion, or otherwise not in

3/ The reasons why plaintiff did not move sooner on plaintiff's renewed motion for a preliminary injunction were detailed in plaintiff's Supplement to Amendment to and R e n e w a l of Application for Temporary Restraining Order and Preliminary Injunction filed o n March 31, 2009. See Second Supplemental Declaration of Anthony J. D. Contri, Mar. 31, 2 0 0 9 , ¶¶ 4-6. Counsel submitted an affidavit asserting that the court denied his request to h ea r his motion for a temporary restraining order ex parte. See Supplemental Affidavit of R o s s L. Crown, Mar. 31, 2009, ¶¶ 11-18. Plaintiff's counsel sent an e-mail to defense c o u n se l on March 24, 2009, which does not refer to plaintiff counsel's attempt to move ex p a rte for a TRO, but attempts to schedule a status conference to discuss "supplementation o f the administrative record [] and a stay of the Air Force's solicitation until this protest is c o n c lu d e d ." Pl.'s Br. filed Mar. 31, 2009, Ex. B-2. Defense counsel responded that she was n o t available that date for a status call, and would not agree to stay the procurement, re sp o n d in g "No. As [defense] indicated to [plaintiff's counsel] two weeks ago," defendant w o u ld not agree to a stay of the procurement. Id. 5

a c c o rd a n c e with the law. 28 U.S.C. § 1491(b)(4) (2006) (adopting standard of 5 U.S.C. § 706(2)(A) (2006)). Plaintiff's burden in proving its likelihood of success is equivalent to th e standards and burdens of proof required to prevail on the merits. Erico, 516 F.3d at 1359 ( N e w m a n , J., dissenting). Therefore, in the context of this bid protest, plaintiff must d e m o n s tra te the likelihood, by a preponderance of the evidence, that the Air Force's decision in fulfillment of FAR 19.502-2(b) was unreasonable. FAR 19.502-2(b) conditions award of a contract as a small business set-aside on a f in d in g that the potential for set-aside is present: The contracting officer shall set aside any acquisition over $100,000 for s m a ll business participation when there is a reasonable expectation that (1) o f f e rs will be obtained from at least two responsible small business concerns o ff e rin g the products of different small business concerns . . . and (2) award w ill be made at fair market prices. Total small business set-asides shall not be m a d e unless such a reasonable expectation exists . . . . A s discussed in the court's earlier opinion, defendant's principal argument is that p la in tif f cannot establish jurisdiction. Jurisdiction, of course, is the predicate to qualify for a substantial likelihood of success on the merits. U.S. Ass'n of Imp. of Textiles & Apparel v . United States, 413 F.3d 1344, 1348 (Fed. Cir. 2005) (finding error in trial court's ignoring jurisd iction al arguments in ruling on motion for preliminary injunction). Defendant's p e n u ltim a te contention ­ made during a March 25, 2009 off-the-record telephone conference (d e f en d a n t later submitted a motion to dismiss on April 2, 2009, arguing mootness) ­ that p la in t if f 's failure to submit a response to the Solicitation renders plaintiff a non-interested p a rty is not convincing. Defendant cited Rex Serv. Corp. v. United States, 448 F.3d 1305 (F e d . Cir. 2006). In Rex the United States Court of Appeals for the Federal Circuit held that R e x was not an actual or prospective bidder because although Rex could have submitted bid it chose not to bid on the contract. Id. at 1307-08. Similarly, Rex did not achieve status as a n interested party by submitting a timely bid protest establishing that it expected to bid, prior to the close of the solicitation, but was prevented from doing so because of improper agency a c tio n . Id. at 1308. The Federal Circuit also ruled that Rex did not possess direct economic in te re st as a putative bidder. Id. Rex could not establish that it had a substantial chance of r e c e iv i n g the contract because Rex did not bid; therefore, even if Rex prevailed on its protest a reevaluation of the procurement would not result in giving Rex the opportunity to secure th e procurement. Id. A s plaintiff contends, Rex is factually distinguishable from this case. Plaintiff in the c a s e at bar protested the Air Force's decision to not solicit a small business for the NSS p ro c u re m e n t, and "[t]he Air Force's decision to issue a solicitation providing for full and 6

o p e n competition is precisely what the protest was intended to prevent. Unlike Rex Service, [ p la in tif f 's ] protest was already pending when the Solicitation was issued." Pl.'s Br. filed M a r. 31, 2009, at 3. Plaintiff is a prospective bidder for the NSS procurement, but it did not " su b m it[ ] a proposal in response to" the Solicitation because plaintiff was improperly and u n f a irly "pre-judged" by the Air Force to be "incapable of satisfying its requirements, and [ p la in tif f ] could not afford the significant expense and effort of proposal preparation, given th e apparent futility of such effort." 4/ Supplemental Declaration of Anthony J. D. Contri, M a r. 25, 2009, ¶ 5. The question of jurisdiction "closely affects" plaintiff's likelihood of s u c c es s on the merits. See U.S. Ass'n of Imp. of Textiles & Apparel, 413 F.3d at 1348. The c o u rt thoroughly addressed defendant's jurisdictional arguments in RhinoCorps, 85 Fed. Cl. a t 715-16, 721, withdrawn and reissued (May 15, 2009), slip op. at 6-8, 11, and plaintiff has e sta b lis h e d that jurisdiction will not be a bar to consideration of plaintiff's arguments on the m e r it s . H a v in g moved for injunctive relief prior to the Solicitation's due date for submission o f proposals, plaintiff seeks to enjoin the Air Force from evaluating the one response to the S o licitatio n . Plaintiff summarizes its position stating that it filed its protest months before th e Solicitation was issued and before the Air Force issued its "after-the-fact D&F. This p ro te st properly laid the axe at the root of the problem ­ the Air Force's failure to continue to procure the services at issue using a small business set-aside, follow-on contract." Pl.'s B r. filed Mar. 31, 2009, at 6. Insofar as defendant argues that the D&F complies with FAR 19.502-2(b), d e f en d a n t's request in its April 2, 2009 motion to dismiss and to stay further briefing in order to permit the contracting officer to issue a new D&F based on the same administrative re c o rd , as supplemented, does not warrant confidence in the contracting officer's D&F, a lth o u g h she does not indicate how she will improve upon it: I have decided to take corrective action in response to the protest. I intend to w i th d ra w the original Determination and Findings (D&F); reexamine the

4/ Plaintiff cites to Delex Sys., Inc., B-400403, at 11 (Oct. 8, 2008), arguing that p la in tif f 's decision not to respond to the Solicitation should not be viewed as evidence s u p p o r tin g the reasonableness of the decision by the Air Force not to solicit a small business s e t-a sid e contract. As articulated in Delex, it is reasonable for a small business to decide not to compete with large-business contractors for work in an unrestricted competition. Id. at 8. T h e agency should not solely rely on this business decision not to compete when d e ter m in in g , pursuant to FAR 19.502-2(b), whether it has a reasonable expectation that a s m a ll business will participate in a set-aside competition. Id. at 9. 7

re su lts of the market research conducted, including reviewing the statements o f capability submitted in response to a Sources Sought Notice the agency is s u e d ; reassess the evaluations of the evaluation panel; and I intend to issue a new D&F that will fully document the conclusions I reach. Affidavit of Shirley D. Lindom, Apr. 1, 2009, USAF. D ef en d an t did not file an opposition to plaintiff's renewed motion for preliminary in ju n c tiv e relief on April 2, 2009, as ordered. See Order entered Mar. 26, 2009, ¶ 3. 2). W h ile the court cannot discount the reasonableness of the D&F, as supplemented by the e a rlier Declaration of Shirley D. Lindom, USAF, Mar. 27, 2009, and the Declaration of Capt. J a m e s D. Norman, USAF, Mar. 26, 2009, the court deems that plaintiff has made compelling s h o w in g s with respect to the three other factors that outweigh the prognostication of p la in tif f 's ultimate success on the merits of its complaint for permanent injunctive relief. See A m o co Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987) (noting that standard f o r permanent injunction is essentially same as temporary injunction, except actual success re p la c e s need to show likelihood of success on merits). Moreover, defendant has focused its attention on jurisdiction. 5/ With respect to this challenge, plaintiff has carried its burden. S e e RhinoCorps, 85 Fed. Cl. at 715-16, withdrawn and reissued (May 15, 2009), slip op. at 6 -8 , 11. R e g a rd in g the second and third factors ­ immediate and irreparable injury to plaintiff a n d balance of hardships on all the parties ­ plaintiff has shown that the irreparable harm it w o u ld suffer if an interim injunction is denied outweighs the harm the Air Force will suffer if this relief is declined. Defense counsel represented during the April 6, 2009 argument that th e Air Force "desperately needs" to get a contract in place, but defendant did not file on A p ril 2, 2009, an opposition with a declaration in response to plaintiff's renewed motion. R a th e r , defendant ratcheted up the anxiety level of this protest by moving to dismiss because th e contracting officer wanted to issue a new D&F based on the same record.

5/ Defendant's April 2, 2009 motion to dismiss argues mootness based on the c o n tra c tin g officer's intention to withdraw the Solicitation and issue a new D&F. No action h a s been taken that moots plaintiff's challenge; moreover, the contracting officer failed to a v e r what she hoped to accomplish vis-a-vis amplifying her conclusions in a new D&F that th e one under review does not express. 8

T h e delay contemplated will not unduly prejudice the Air Force. Although the c o n tra c tin g officer completed the D&F on or about October 1, 2008, 6/ the Solicitation was n o t issued until almost five months later on February 23, 2009; defendant agreed to a briefing s c h e d u le that called for argument on May 22, 2009 (see Order entered Feb. 10, 2009); and th e latest revision to the briefing schedule, entered this date, calls for argument on May 13, 2 0 0 9 . No showing has been made why a decision (as promised by the court) by May 18, 2 0 0 9 , will not be timely, given that the Air Force previously agreed to a decision based on M a y 22, 2009 date for argument. In contrast, the risk of harm associated with continuing with the procurement poses g re a te r danger to plaintiff in terms of both expense and opportunity cost: first, the longer the A ir Force is allowed to proceed with this procurement, the more likely additional interested p a rties to this procurement will arise resulting in further litigation and greater expense to p lain tiff ; second, courts have found consistently that the loss of an opportunity to compete f o r a contract on a level playing field sufficiently establishes irreparable harm. "An action a t law only allows recovery of `bid preparation costs in a suit for damages, but not loss of a n tic ip a te d profits,' leaving a bid protestor irreparably harmed." Bannum Inc. v. United S ta te s, 60 Fed. Cl. 718, 730 (2004) (denying permanent injunctive relief), aff'd, 404 F.3d 1 3 4 6 (Fed. Cir. 2005) (quoting Essex Electro Eng'rs, Inc. v. United States, 3 Cl. Ct. 277, 287 (19 8 3 ), aff'd, 757 F.2d 247 (Fed. Cir. 1985)). F in a lly, the public interest will be served by assuring that the Air Force is following a mandatory procurement procedure when the record shows that initially the Air Force d e e m e d the procedure to be inapplicable. CONCLUSION A c c o rd in g ly, based on the foregoing, I T IS ORDERED, as follows: 1 . Plaintiff's Amendment to and Renewal of Application for Temporary Restraining O rd e r and Preliminary Injunction, filed on March 25, 2009, as supplemented on March 31, 2 0 0 9 , is granted insofar as defendant, through the United States Air Force, its officers, a g e n ts, employees, and all other persons acting in connection therewith, shall not proceed to

6/ Although the D&F itself is not dated, and neither the contracting officer's d e c la ra tio n nor affidavit avers to a date, the index to the administrative record indicates that th e D&F was issued on October 1, 2008. 9

e v a lu a te any offer submitted in response to Solicitation No. FA9453-09-R-0001, for full and o p e n competition for the procurement of services for the 709th NSS Counterproliferation and N u clea r Weapon requirement, pending the entry of an order on plaintiff's complaint for a p e rm a n e n t injunction, which the court commits to issue by midnight on May 18, 2009. 2 . Pursuant to RCFC 65(c), the court determines that no monetary bond should be re q u ire d of plaintiff as a condition to entry of the preliminary injunction. The delay o c c a s io n e d to this procurement is of the Air Force's own making. 3. Further to the order entered on March 30, 2009, Defendant's Motion To S u p p le m e n t the Administrative Record filed on March 27, 2009, is granted as to Ex. D and E . These declarations of the contracting officer and the project manager elaborate on the D & F , especially Capt. Norman's role and analysis, and do not constitute post-hoc ra tio n a liz a tio n s . 4. Defendant's motion to dismiss filed on April 2, 2009, is denied on the grounds that th e contracting officer has not withdrawn the D&F and that the Solicitation remains in force a n d effect. Defendant has not offered any reason why the contracting officer should have a n opportunity to reevaluate the record and issue a new D&F. 5. Plaintiff's motion for summary judgment filed on April 6, 2009, is denied without p re ju d ic e to incorporating any arguments therefrom in plaintiff's motion for judgment on the a d m in is tra tiv e record. 6. Paragraph 7 of the order entered on March 26, 2009, is amended as follows: 1 ) The filings called for by ¶ 2 shall be submitted on April 16, 2009. 2 ) The filings called for by ¶ 3 shall be submitted on May 1, 2009. 3 ) The filings called for by ¶ 4 shall be submitted on May 8, 2009. 4 ) Argument pursuant to ¶ 5 shall be held at 2:00 p.m. on Wednesday, M a y 13, 2009, in the Howard T. Markey National Courts Building. Counsel f o r plaintiff shall notify the court at 202/357-6620 by May 8, 2009, if he w ish e s to participate by telephone conference call to be placed by the court.

s / Christine O.C. Miller ______________________________ C h r is tin e Odell Cook Miller Judge 10