CALIFORNIA INDUSTRIAL FACILITIES RESOURCES, INC. dba CAMSS SHELTERS v. USA

Filing 51

PUBLISHED OPINION. Signed by Judge Thomas C. Wheeler. (jf4) Copy to parties.

In the United States Court of Federal Claims
No. 11-299C
(Filed Under Seal: July 8, 2011)
(Reissued for Publication: July 13, 2011) 1

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CALIFORNIA INDUSTRIAL FACILITIES
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RESOURCES, INC.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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and
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ALASKA STRUCTURES, INC.,
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Defendant-Intervenor.
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Bid Protest; Required Competition
for Contracts of Unusual and
Compelling Urgency; 10 U.S.C. §
2304(e);
FAR
6.302-2(c)(2);
Mootness Doctrine Exception for
Circumstances That Are Capable of
Repetition, Yet Evading Review;
Delay in Public Notification of Sole
Source Award; FAR 6.305(b); FAR
1.102-2(b).

Paul F. Khoury, with whom were Brian G. Walsh and Tracye Winfrey Howard, Wiley
Rein LLP, Washington, D.C., for Plaintiff.
Douglas T. Hoffman, with whom were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Bryant G. Snee, Deputy Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, D.C., for Defendant.
Richard J. Conway, with whom was Pablo A. Nichols, Dickstein Shapiro LLP,
Washington D.C., for Defendant-Intervenor.

1

The Court issued this opinion under seal on July 8, 2011, and gave the parties until July 15, 2011 to
submit any proposed redactions of competition-sensitive, proprietary, confidential or other protected
information. Pursuant to the Court’s request, the parties submitted proposed redactions, which the Court
accepted. The redactions are indicated by [ . . . ].

OPINION AND ORDER
WHEELER, Judge.
In this bid protest, Plaintiff California Industrial Facilities Resources, Inc. (CIFR)
challenges the Government’s award of a sole source contract for sixteen 50-man bare
base shelter systems to Alaska Structures, Inc. (AKS). The bare base shelter systems are
large tent-like structures that serve as living quarters for United States military troops
arriving in Afghanistan. CIFR alleges that the Government violated statutory
competition requirements when it failed to consider suppliers other than AKS in
awarding the contract, and acted unreasonably by delaying the public posting of the sole
source award until after contract performance to avoid possible bid protests. CIFR
asserts that it would have submitted a proposal for the contract if given an opportunity,
and that its price would have been significantly lower than the price offered by AKS.
By the time the protest was filed in this Court, AKS had nearly performed the
entire contract, and the Court denied the application for a temporary restraining order
(TRO). The contract is now fully performed, but CIFR nevertheless requests a
declaratory judgment to prevent the Government from acting as it did here on future
procurements. In response, Defendant argues that the case should be dismissed as moot
because CIFR’s requested relief cannot redress any actual injuries. Both Defendant and
AKS also argue that the Government’s actions were reasonable and in compliance with
governing law.
In brief summary, the Court finds that this case is not moot because the
Government’s violation of statutory competition requirements for the war effort in
Afghanistan is capable of repetition, and could again evade review. The challenged
actions were too short in duration to be fully litigated prior to completion, and there is a
reasonable expectation that the complaining party will be subject to the same actions in
the future. Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462-63
(2007); Humane Soc’y v. Clinton, 236 F.3d 1320, 1331 (Fed. Cir. 2001); Ameron, Inc. v.
U.S. Army Corps of Engineers, 787 F.2d 875, 880-81 (3d Cir. 1986). The Court has
jurisdiction of this matter under 28 U.S.C. § 1491(b) (2006).
On the merits, the Court finds that the Government’s award of a sole source
contract to AKS violated the competition requirements in 10 U.S.C. § 2304(e) (2006) and
Federal Acquisition Regulation (FAR) 6.302-2(c)(2). Even when confronted with
unusual and compelling urgency, the Government still must request offers from as many
potential sources as is practicable. The Government was well aware that other sources
would have been interested in competing for the contract, but the Government made no
effort to contact any source other than AKS. The Government had 26 days between its
awareness of the shelter system requirement (April 1, 2011) and the award of the contract

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to AKS (April 27, 2011), and it easily could have obtained competitive prices from other
sources. The Government’s failure to do so was in violation of law.
The Court also finds that the Government’s delay in publicly posting the
Justification and Approval (J&A) of the award until after performance was done
intentionally for the purpose of avoiding a bid protest, and therefore was arbitrary and
capricious. Even though FAR 6.305(b) affords the Government 30 days after award to
post the J&A, the Government’s actions were calculated to obstruct the interests of those
who might object to the sole source award. The Government must at all times strive for
“maintaining the public’s trust,” and cannot conduct its business in a manner that
undermines “integrity, fairness, and openness.” See FAR 1.102-2(c). The Government
did not meet this standard here. Accordingly, Plaintiff’s motion for judgment on the
administrative record is granted, Defendant’s motion to dismiss or in the alternative for
judgment on the administrative record is denied, and Defendant-Intervenor’s motion for
judgment on the administrative record also is denied.
Background
On April 1, 2011, the Secretary of Defense ordered the deployment of a 690member infantry battalion to support the Combined Joint Special Operations Task ForceAfghanistan. (Administrative Record (AR) 67.) The latest expected arrival date for this
infantry battalion was June 1, 2011. Id. The United States military in Afghanistan
needed sixteen 50-man bare base shelter systems to house these troops. Id. Bare base
shelter systems are large tents that provide troops with space for sleep, work, and storage.
(AR 267.) Two contracting officials, Lieutenant Commander Kevin B. Morris and
Captain Pak Sa Dewhurst, were responsible for conducting this procurement. See AR
268. Captain Dewhurst was redeployed on April 24, 2011, and Technical Sergeant Chad
Obermiller replaced him. (AR 95, 163.)
By April 2, 2011, one day after the announcement of the troop deployment, LCDR
Morris already had contacted AKS and obtained a price quotation for the sixteen shelter
systems. (AR 24.) LCDR Morris asked AKS for a “repeat customer discount” and
received [ . . . ] price reduction. Id. He also had completed within one day 85 percent of
the J&A. Id. LCDR Morris used a J&A from a previous contract to prepare the J&A for
this procurement. (AR 48, 75.) When preparing the J&A, LCDR Morris and Captain
Dewhurst were well aware that a sole source contract award might result in a bid protest.
In an e-mail sending a draft of the J&A to LCDR Morris, Captain Dewhurst suggested
that the J&A needed to be revised to avoid a protest, stating “[y]ou may need to beef up
some language throughout the document. It has to be significantly stronger than the first
J&A for obvious reasons.” (AR 48.) Further, Patricia Babida, a senior contracting
official for the CENTCOM Contracting Command, suggested a policy review of the
award package because “these Alaska structures are pretty protestable items.” (AR 241.)

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Lt. Col. Lavonne Shingler, an Air Force Special Competition Advocate, approved
the sole source J&A on April 26, 2011. (AR 269.) In a paragraph describing efforts to
obtain competition, the J&A states that the Government contacted the Defense Logistics
Agency (DLA) and the General Services Administration (GSA) on April 3, 2011, but that
neither was able to meet the expedited delivery requirements for the shelter systems.
(AR 267.) The Government explains in the J&A that it turned to two proven commercial
suppliers, ADS Inc., a distributer of Alaska Structures equipment, and Alaska Structures
itself. Id. The Government determined that, because ADS was only a distributor, it was
more advantageous to contact AKS directly. Id. In a paragraph describing interested
sources, the J&A states “[o]ther sources can provide bare base systems. However, under
the compressed timeframe because of the urgent and compelling need, extraordinary
contracting methods had to be employed in order to ensure timely delivery of a functional
product.” (AR 268.) Captain Dewhurst certified that the cost to the Government would
be fair and reasonable. The J&A states that “[p]rices for this equipment are known from
public sources through current price lists, catalogs and advertisements.” Id. While the
Government makes the above assertions in the J&A, there is no evidence in the
Administrative Record showing that any contracting official actually contacted DLA,
GSA, or ADS, or reviewed prices from any price lists, catalogs, or advertisements.
The Government also prepared the solicitation from a previous sole source
contract. (AR 25) (“The RFP being built is identical to the 1st J&A procurement.”) On
April 23, 2011, the Government sent the solicitation to AKS. (AR 98.) On April 24,
2011, AKS submitted its proposal. (AR 173.) AKS’s total proposed price was
$8,932,692. (AR 213.) The Government awarded the contract to AKS on April 27,
2011. (AR 271, 272.)
Shortly after sending the award document to AKS for signature, TSgt Obermiller
asked AKS’s Jimmy White to supply a published company price list. (AR 273.) TSgt
Obermiller explained that he needed the price list to substantiate that the contract price
was fair and reasonable. (AR 279.) Mr. White replied that he could not provide the price
list immediately because AKS’s Vice-President was on a flight from Germany to Seattle.
(AR 276, 279.) When AKS was unable to provide a published price list, LCDR Morris
directed TSgt Obermiller to review two previous ADS price quotations for AKS
products. (AR 288.) 2
Also on the same day as the contract award, TSgt Obermiller sent an e-mail to
LCDR Morris asking for information on upcoming shelter system procurements so that
TSgt Obermiller could start the solicitation early and avoid another “urgent and
2

The Court cannot fathom how the Government could satisfy itself that the AKS price for this contract
was “fair and reasonable” simply by comparing it with other ADS prices for AKS products. Seemingly, a
comparison with other industry prices would have been necessary to draw any conclusion about the
reasonableness of AKS’s prices.
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compelling” procurement. (AR 312-13.) LCDR Morris responded that he did not think
there will be a “next time,” but if there is, “it’ll be the same timeline, less than 60 days
from the time the SECDEF says execute until the troops are here on deck. Factor in the
administratium [sic] involved and that will leave about 45 days (or less) from flash to
bang.” (AR 312.) LCDR Morris then expressed his frustration with the internal
government channels of procuring shelter systems:
I used DLA for the last buy that Capt Dewhurst was working on . . . the one
that got a pre-award protest and he cancelled the solicitation. The one
where we needed it all [not later than] 15APR11 to BAF. DLA processed
the MIPR 15 MAR. The contract for the (8) kits was awarded 12APR . . .
And the [tents have] not moved from the factory. And for that reason, I’ll
never use DLA again in a contingency environment.
Id. (ellipses in original). On May 2, 2011, AKS’s logistics management company, [ . . .
], provided LCDR Morris and others with a delivery receipt for materials to be shipped
later the same week. (AR 323.) On May 3, 2011, [ . . . ] provided LCDR Morris and
TSgt Obermiller with flight information showing that the shelter systems would arrive on
May 5, 2011. (AR 329.) On May 4, 2011, [ . . . ] informed the Government that the
trucks with the shelter systems were on the way to the airport and on May 5, 2011, [ . . . ]
stated that the shelter systems were on a flight to Afghanistan. (AR 336, 340.)
The Government publicly announced the sole source award to AKS by posting the
J&A on www.fedbizopps.gov on May 4, 2011, seven days after the contract was
awarded. (Pl.’s Mot. Admin Rec. 11-12; Def.’s Mot. Admin Rec. 2; Def-Intervenor’s
Mot. Admin Rec. 10.) On May 8, 2011, the Government received notice that another
shelter system manufacturer, All Points International (API), would be filing a protest of
the sole source award. (AR 345.) Upon learning this information, LCDR Morris sent an
e-mail to TSgt Obermiller stating “I thought you guys would wait until the 29th day to
post this [notice].” Id. LCDR Morris was referring to FAR 6.305(b), which permits the
Government 30 days after contract award to post the J&A. Regarding API, LCDR
Morris observed:
This is the guy that was like a pitbull latching on to Capt Dewhurst &
myself, hounding us while we went thru GSA e-Buy . . . until the protest
was filed by AKS back in late Feb/Mar timeframe.
We ended up cancelling the solicitation & going thru DLA. Still haven’t
gotten the material yet . . . but went thru DLA.
Id. (ellipses in original). On May 9, 2011, LCDR Morris sent an e-mail to AKS and [ . . .
] asking for an update on the remaining contract items that were being shipped from New
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Mexico. (AR 347.) LCDR Morris observed “[r]ecent events dictate the importance of
getting all material flowing out of NM as soon as possible.” Id. Also on May 9, 2011,
TSgt Obermiller sent an e-mail to AKS stating that the contract has been officially
protested and AKS must stop work. (AR 348.) AKS’s Jimmy White responded that
most of the material “has already shipped.” Id. LCDR Morris informed TSgt Obermiller
that the Government had received 89 of 96 tents and all 96 environmental control units.
(AR 349.)
On May 13, 2011, API filed a complaint in this Court, along with an application
for a TRO and a motion for a preliminary injunction. AKS, the awardee, filed a motion
to intervene. CIFR had filed a bid protest at the Government Accountability Office
(GAO) on May 9, 2011 challenging the sole source award to AKS, but understood that its
GAO protest would be dismissed due to API’s protest in this Court. See 4 C.F.R. §
21.11(b). Thus, CIFR brought its protest into Court and moved to intervene on Plaintiff’s
side. The Court granted both motions to intervene on May 16, 2011. The same day, the
Court heard oral argument on API’s application for a TRO, which the Court denied
because contract performance was almost completed, and because the Court must afford
due regard to the interests of national defense. See 28 U.S.C. § 1491(b)(3) (2006).
On May 24, 2011, after its TRO application had been denied, API filed a notice of
voluntary dismissal pursuant to Rule 41(a)(1)(A). On May 25, 2011, Defendant filed the
Administrative Record. On May 26, 2011, the Court held a status conference in which
CIFR confirmed that it wished to pursue the protest on its own. CIFR filed a complaint
and motion for judgment on the administrative record on June 1, 2011. The Court then
dismissed API from the case and CIFR replaced API as Plaintiff. On June 8, 2011,
Defendant filed its combined motion to dismiss pursuant to Rule 12(b)(1), cross-motion
for judgment on the administrative record, and response to Plaintiff’s motion for
judgment on the administrative record. AKS also filed its response and cross-motion for
judgment on the administrative record. CIFR filed its response to Defendant’s and
Defendant-Intervenor’s motions on June 13, 2011. The Court heard oral argument on
June 20, 2011.
Discussion
A. Subject Matter Jurisdiction
The Tucker Act confers upon this Court jurisdiction over bid protests “in
connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b). In this
case, Defendant argues that the Court lacks jurisdiction because the contract has been
performed and the case is moot. “[F]ederal Courts are without power to decide questions
that cannot affect the rights of litigants in the case before them.” DeFunis v. Odegaard,
416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). A
case is moot if intervening events render it impossible to grant any effective relief to the
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prevailing party. Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1372 (Fed.
Cir. 2000). If a case becomes moot, there is no justiciable “case or controversy” for the
Court to decide, and the Court is divested of subject matter jurisdiction. Cal. Indus.
Facilities Res. v United States, 80 Fed. Cl. 633, 639 (2008). In deciding a motion to
dismiss for lack of subject matter jurisdiction, the Court must accept as true the facts
alleged in the complaint and draw all reasonable inferences in favor of the plaintiff.
Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). If the defendant questions
jurisdiction, the plaintiff cannot rely solely on allegations in the complaint, but must
bring forth relevant, adequate proof to establish jurisdiction. DataMill, Inc. v. United
States, 91 Fed. Cl. 740, 750 (2010). The Court may examine relevant evidence to decide
any factual disputes. Id.
A notable exception to the mootness doctrine occurs when the action complained
of is capable of repetition, yet might again evade review. Humane Soc’y, 236 F.3d at
1331. This exception applies where “(1) the challenged action is in its duration too short
to be fully litigated prior to cessation or expiration; and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
Fed. Election Comm’n, 551 U.S. at 462 (internal quotation omitted). For the second part
of this test, there must be a “reasonable expectation” or a “demonstrated probability” that
the same controversy will recur involving the same party. Murphy v. Hunt, 455 U.S.
478, 482 (1982).
This exception to the mootness doctrine has been applied in bid protest cases. See
Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 881 (3d Cir. 1986)
(applying the mootness exception to constitutional issues where the underlying GAO bid
protest had been resolved, because plaintiff likely would face similar issues again);
Valley Constr. Co. v. Marsh, 714 F.2d 26, 28 (5th Cir. 1983) (applying the mootness
exception to Army Corps of Engineers minority set-aside contracts, where the same
circumstances could arise again and evade review). 3
The present case falls squarely within the mootness exception for claims capable
of repetition, yet evading review. As is apparent from the record, a contract for bare base
shelter systems can be performed within a matter of days. The Government awarded the
contract to AKS on April 27, 2011, and by May 5, 2011, the military had received 89 of
96 tents and all 96 environmental control units. (AR 271, 340, 349.) CIFR alleges that it
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Other procurement cases have declined to apply the exception to the mootness doctrine, demonstrating
that each case must be examined on its own unique facts. See Columbia Rope Co. v. West, 142 F.3d
1313, 1317 (D.C. Cir. 1998) (holding that even if the length of the contract was too short to allow
effective challenge, there was no expectation that the contractor would suffer the same injury again);
James Luterbach Contr. Co., Inc. v. Adamkus, 781 F.2d 599, 602-604 (7th Cir. 1986) (holding that
challenge to a water treatment plant contract did not fit the mootness exception because the plant took two
years to build and the possibility of repetition was too speculative); Lion Raisins, Inc. v. United States, 69
Fed. Cl. 32, 34-35 (2005) (holding that plaintiff’s challenge to its suspension from bidding on contracts
does not evade review because the litigation could be completed before the suspension ends).
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did not know about the sole source procurement until May 4, 2011, the day of public
notification on www.fedbizopps.gov. If the protester does not learn of the procurement
until the contract has been performed, the sole source award would evade any review.
Thus, a reasonable expectation exists that CIFR would suffer the same injury again.
CIFR is a frequent bidder for Government shelter system contracts. There is a reasonable
probability that the military again will need shelter systems in Afghanistan on a
compressed timeframe. In this instance, upon learning of the troop deployment, the
Government immediately decided to procure the shelter systems through a sole source
award to AKS. The Government never even considered obtaining competitive price
quotations from other sources. If left unchecked, the Government likely would follow
the same course again.
Defendant’s counsel agreed at oral argument that this shelter system procurement
is capable of repetition and of evading review. In response to the Court’s inquiry on
whether cases like this one may be subject to the mootness exception, Defendant’s
counsel stated: “there certainly is the opportunity for capable of repetition – for the
combination of capable of repetition and evading review.” (Tr. Oral Arg., June 20, 2011,
at 27.)
B. Standard of Review
In reviewing motions for judgment on the administrative record, the Court must
determine whether “given all the disputed and undisputed facts, a party has met its
burden of proof based on the evidence in the record.” DMS All-Star Joint Venture v.
United States, 90 Fed. Cl. 653, 661 (2010) (citing Bannum, Inc. v. United States, 404
F.3d 1346, 1356-57 (Fed. Cir. 2005)). Resolving motions for judgment on the
administrative record is “akin to an expedited trial on ‘the paper record’” CHE
Consulting, Inc. v. United States, 78 Fed. Cl. 380, 387 (2007), aff’d, 552 F.3d 1351 (Fed.
Cir. 2008). The Court may make findings of fact where necessary. Bannum, Inc., 404
F.3d at 1356.
The Court reviews bid protests under the standards set out in the Administrative
Procedure Act (APA), 5 U.S.C § 706. See 28 U.S.C. § 1491(b)(4). Under the APA, the
Court will set aside the agency’s decision if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Banknote Corp. of Am., Inc. v.
United States, 365 F.3d 1345, 1350-51 (Fed. Cir. 2004) (citing Advanced Data Concepts,
Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir. 2000)). A sole source contract is
subject to judicial relief if (1) the award lacked a rational basis; or (2) the procurement
process involved a violation of a statute, regulation, or procedure. Emery Worldwide
Airlines v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2000). The protester also must
establish prejudice by showing there is a substantial chance it would have received the
contract if not for the errors in the procurement process. Bannum, 404 F.3d at 1353. If a
protester succeeds in establishing prejudicial error, the court may grant the relief it
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considers proper, including declaratory and injunctive relief. 28 U.S.C. § 1491(b)(2);
Lumetra v. United States, 84 Fed. Cl. 542, 549 (2008).
C. Award of Sole Source Contract to Alaska Structures
CIFR argues that the Government violated the Competition in Contracting Act
(CICA) by failing to consider other sources besides AKS. CICA requires, with certain
exceptions, that the head of an agency conducting a procurement of property or services
“obtain full and open competition.” 10 U.S.C. § 2304(a); FAR 6.101. Subsection (c) of
the statute provides for exceptions from the competition requirement, including when
“the agency’s need for the property or services is of such an unusual and compelling
urgency that the United States would be seriously injured unless the agency is permitted
to limit the number of sources from which it solicits bids or proposals.” § 2304(c)(2).
However, even when an agency limits the number of sources because of unusual and
compelling urgency, CICA requires the agency to “request offers from as many potential
sources as is practicable under the circumstances.” § 2304(e); see also FAR 6.3022(c)(2). CICA requires that any justification for a sole source award include “a
determination that the anticipated cost will be fair and reasonable.” § 2304(f)(3)(C); see
also FAR 6.303-2(b)(7).
In the present case, the Court does not question that the Government’s need for
shelter systems in Afghanistan was of an unusual and compelling urgency. Yet, the
Government’s contracting officials were aware that there were other providers of shelter
systems. The J&A stated that “[o]ther sources can provide bare base systems.” (AR
268.) See also Tr. Oral Arg., June 20, 2011, at 33 (Defendant’s counsel acknowledged
“it is certainly viable from this record that these contracting officers were well aware of
other tent providers.”) By April 2, 2011, one day after becoming aware of the shelter
system requirement, the Government already had solicited a price quotation from AKS.
There is no explanation in the Administrative Record of why the Government could not
have contacted other shelter system manufacturers just as quickly. A 26-day period
between notice of the requirement and contract award would have afforded an ample
opportunity to obtain price quotations from other sources. Although the Government
states in the J&A that contracting officials contacted DLA, GSA, and ADS, the
distributor of AKS products, there is no evidence in the Administrative Record actually
showing that these contacts were made. Even more importantly, there is no evidence that
the Government contacted CIFR, API, or any other shelter system supplier, to obtain
competitive price quotations. The failure to take these actions violated the requirement in
10 U.S.C. § 2304(e) and FAR 6.302-2(c)(2) that the Government request offers from as
many sources as practicable.
Further, the sole source award to AKS lacked justification because the
Government’s contracting officials failed to determine that the contract price was fair and
reasonable. Although Captain Dewhurst certified on April 22, 2011 in the J&A that the
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price was “fair and reasonable” and stated that “prices for this equipment are known from
public sources through current price lists, catalogs and advertisements,” (AR 268), TSgt
Obermiller asked AKS’s Jimmy White on April 27, 2011 if AKS had a published price
list for its products. (AR 273.) TSgt Obermiller did not request this information from
AKS until after the price reasonableness already had been certified in the J&A and the
contract award document had been sent to AKS for signature. The conclusion is
inescapable that the Government had no real concern about the price it would pay to
AKS, and simply was attempting to pad its file with supporting price data. The
Government did not even request or review any price information available from other
shelter system suppliers.
CIFR was prejudiced by the Government’s procurement errors. If given an
opportunity, CIFR would have submitted a proposal for the shelter system procurement.
CIFR asserts that it had the supplies on hand to provide sixteen bare base shelter systems.
(Compl. Brooke Declaration ¶ 8.) In fact, the Government previously had awarded other
shelter system contracts to CIFR on solicitations designated as “brand name or equal,”
seeking AKS products or their equivalents. Id. ¶ 3, Ex. 2. CIFR also states that it could
have provided the shelter systems at a lower price. Id. ¶¶ 6-7. The Court finds that, if the
Government had complied with 10 U.S.C. § 2304(e) and FAR 6.302-2(c)(2), CIFR would
have submitted a proposal for the shelter system procurement, and would have had a
substantial chance of receiving the contract award.
D. Delay in Posting the J&A
CIFR also argues that the Government acted arbitrarily and capriciously by
waiting until after contract performance to post the J&A on www.fedbizopps.gov to
avoid a possible bid protest. Defendant’s counsel conceded at oral argument that if the
contracting officials waited to post the J&A in order to evade review, it would be
inappropriate:
THE COURT: Mr. Hoffman, would you agree with me that if there were
any gamesmanship with the posting of the J&A even though it was less
than 30 days, do you think that would be inappropriate?
MR. HOFFMAN: Your Honor, I think that if there was gamesmanship
with the posting of the J&A and it was proven that it was to – that it was
meant in order to ensure delivery and evade review, then, yes, I would think
that that probably would fall under -- would be inappropriate.
(Tr. Oral Arg., June 20, 2011, at 45.)
The Court finds from the Administrative Record that the Government’s
contracting officials intentionally waited until they knew the contract was almost fully
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performed before posting the J&A. On May 3, 2011, AKS’s logistics company, [ . . . ],
provided LCDR Morris and TSgt Obermiller with flight shipping data, showing that most
of the shelter systems would arrive in Afghanistan on May 5, 2011. (AR 329.) On May
4, 2011, the day of the J&A posting, [ . . . ] informed LCDR Morris and TSgt Obermiller
that the trucks with the materials were on their way to the airport for flight build up. (AR
336.) LCDR Morris indicated that the delay until the day before the actual shipment was
for the purpose of avoiding a bid protest. After API notified the Government that it
would protest the procurement, LCDR Morris stated in an e-mail “I thought you guys
would wait until the 29th day to post this.” (AR 345.) The following day, LCDR Morris
sent an e-mail encouraging AKS to ship the remaining shelter systems immediately,
stating “[r]ecent events dictate the importance of getting all material flowing out of NM
as soon as possible.” (AR 347.) By the time work was stopped due to the filing of a bid
protest, AKS had shipped 89 of 96 tents and all 96 environmental control units. (AR
349.)
The law permits an agency to post the public notice of a sole source award made
because of unusual or compelling urgency within 30 days after contract award. 10 U.S.C.
§ 2304(l)(1)(B); FAR 6.305(b). In deciding when to post a J&A, the agency should not
intentionally delay the posting, as it did here, as a means of avoiding potential bid
protests. FAR 1.102-2(c) requires government officials to “conduct business with
integrity, fairness, and openness,” and to thereby “[maintain] the public’s trust.” This
provision comes into play in determining the reasonableness of government action when
procuring officials engage in gamesmanship to avoid any review of an improper sole
source award. In other circumstances, the application of FAR 1.102-2(c) to sustain a bid
protest may be debatable. See Castle-Rose, Inc. v. United States, No. 11-163C, 2011 WL
255087, at *14-15 (Fed. Cl. June 23, 2011); FFTF Restoration Co., LLC v. United States,
86 Fed. Cl. 226, 237-38 (2009); Info. Scis. Corp. v. United States, 85 Fed. Cl. 195, 202
(2008). However, as a basic tenet of the FAR acquisition system, the Court is not
inclined to ignore principles of integrity, fairness, and openness where they directly apply
to government actions. The Court finds that, even though the posting of the J&A
technically was within the 30-day period allowed by FAR 6.305(b), the conduct
complained of was arbitrary and capricious, and cannot be condoned in any reputable
procurement system.
Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on the administrative
record is GRANTED. The Government violated 10 U.S.C. § 2304(e) and FAR 6.3022(c)(2) by failing to request as many offers as is practicable under the circumstances.
The Government’s conduct in delaying the posting of the J&A to avoid possible bid
protests was arbitrary and capricious. Defendant’s motion to dismiss, or in the alternative
for judgment on the administrative record is DENIED, and Defendant-Intervenor’s

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motion for judgment on the administrative record is DENIED. The clerk is requested to
enter this declaratory judgment for Plaintiff. No costs.
On or before July 15, 2011, counsel for the parties shall carefully review this
opinion for any competition-sensitive, proprietary, confidential or other protected
information, and submit to the Court proposed redactions to this opinion, if any, before it
is released for publication. Counsel are requested to minimize their requested redactions
so that the Court may publish as much of the decision as possible.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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