            In the United States Court of Federal Claims
                                           BID PROTEST
                                            No. 19-676C
                                Filed Under Seal: September 20, 2019
                                     Reissued: October 23, 2019*

                                                   )
    WELLPOINT MILITARY CARE                        )
    CORPORATION,                                   )
                                                   )
         Plaintiff,                                )        Injunction Pending Appeal; RCFC 62(d).
                                                   )
    v.                                             )
                                                   )
    THE UNITED STATES,                             )
                                                   )
         Defendant,                                )
                                                   )
    v.                                             )
                                                   )
    OPTUM PUBLIC SECTOR                            )
    SOLUTIONS, INC.,                               )
                                                   )
         Defendant-Intervenor.                     )
                                                   )

       Mark D. Colley, Counsel of Record, Kara L. Daniels, Thomas McSorley, Michael E.
Samuels, Nathaniel E. Castellano, Of Counsel, Arnold & Porter Kaye Scholer LLP, Washington,
DC, for plaintiff.

      Steven M. Mager, Senior Trial Counsel, Douglas K. Mickle, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC; Bridget E. Grant,
Of Counsel, United States Department of Veterans Affairs, for defendant.

        Jason A. Carey, Counsel of Record, Mark W. Mosier, J. Hunter Bennett, Kayleigh M.
Scalzo, Kevin T. Barnett, Brooke G. Stanley, Of Counsel, Covington & Burling, LLP,
Washington, DC; Daniel S. Goldberg, Optum Public Sector Solutions, Inc., for defendant-
intervenor.


*
  This Memorandum Opinion and Order was originally filed under seal on September 20, 2019 (ECF no.
59). The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted from the Memorandum Opinion and Order. On October 22, 2019,
the parties filed a joint status report indicating that no redactions are necessary (ECF No. 60). And so, the
Court is reissuing its Memorandum Opinion and Order, dated September 20, 2019 without redactions.
                MEMORANDUM OPINION AND ORDER DENYING
            PLAINTIFF’S MOTION FOR INJUNCTION PENDING APPEAL

GRIGGSBY, Judge

I.     INTRODUCTION

       This post-award bid protest matter involved a challenge of the Department of Veteran
Affairs’ (“VA”) evaluation and award decisions in connection with Request for Proposal No.
VA791-16-R-0086 (the “Solicitation”) to award a contract for medical, surgical, complementary
and integrative healthcare services, durable medical equipment, pharmacy and dental services to
be provided in the VA’s Region 3 Community Care Network (the “Contract”). Compl. at ¶¶ 1,
2; AR Tab 123 at 40977, 41032-33. On August 1, 2019, the Court issued a Memorandum
Opinion and Order (1) denying WellPoint Military Care Corporation’s (“WellPoint”) motion for
judgment upon the administrative record; (2) granting the government’s and Optum Public
Sector Solutions, Inc.’s (“Optum”) cross-motions for judgment upon the administrative record;
(3) denying WellPoint’s request for injunctive relief; and (4) dismissing the complaint (the
“August 1, 2019, Decision”). WellPoint Military Care Corp. v. United States, No. 19-676C,
2019 WL 4049168, at *14-15 (Fed. Cl. Aug. 1, 2019). On August 1, 2019, WellPoint filed a
notice of appeal of the August 1, 2019, Decision to the United States Court of Appeals for the
Federal Circuit. See generally Notice of Appeal.

       WellPoint has moved for an injunction enjoining Optum from proceeding with
performance under the Contract pending its appeal, pursuant to Rule 62(d) of the Rules of the
United States Court of Federal Claims (“RCFC”). See generally Pl. Mot.; Pl. Mem. For the
reasons discussed below, the Court DENIES WellPoint’s motion.

II.    FACTUAL AND PROCEDURAL BACKGROUND

       On August 1, 2019, the Court issued a Memorandum Opinion and Order that, among
other things, denied WellPoint’s motion for judgment upon the administrative record, denied
WellPoint’s request for injunctive relief and dismissed the complaint. WellPoint Military Care
Corp., 2019 WL 4049168, at *14-15. In the August 1, 2019, Decision, the Court held, among
other things, that WellPoint’s claim that the VA treated offerors unequally during its evaluation
of proposals under the Solicitation’s Corporate Experience/Capability Subfactor was
unsupported by the administrative record, because the VA’s evaluation did not prejudice

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WellPoint and the record evidence shows that the agency reasonably evaluated proposals under
this subfactor. Id. at *11-12; AR Tab 87 at 17099-100. The Court also held that WellPoint’s
claim that the VA incorrectly evaluated the relative cost savings offered by WellPoint and
Optum during the evaluation process was similarly unsupported by the administrative record,
because the record evidence shows that the VA evaluated the unit prices proposed by WellPoint
and Optum consistent with the terms of the Solicitation. WellPoint Military Care Corp, 2019
WL 4049168, at *13.

       After WellPoint filed its motion for an injunction pending the appeal of the Court’s
August 1, 2019, Decision, the government and Optum filed responses and oppositions to
WellPoint’s motion on August 15, 2019. See generally Def. Resp.; Def.-Int. Resp. On August
20, 2019, WellPoint filed a reply in support of its motion for an injunction pending appeal. See
generally Pl. Reply.

       This matter having been fully briefed, the Court resolves the pending motion.

III.   LEGAL STANDARDS

       Injunctions pending appeal are governed by RCFC 62(d). This rule provides that:

       While an appeal is pending from an interlocutory order or final judgment
       that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or
       modify an injunction, the court may suspend, modify, restore, or grant an
       injunction on terms for bond or other terms that secure the opposing party’s
       rights.

RCFC 62(d).

       This Court has recognized that an injunction pending appeal provided for under RCFC
62(d) is an extraordinary remedy. Acrow Corp. v. United States, 97 Fed. Cl. 182, 183 (2011)
(quoting Golden Eagle Refining Co. v. United States, 4 Cl. Ct. 622, 624 (1984)). The Court has
also held that, when considering such a motion, the Court “assesses the movant’s chances for
success on appeal and weighs the equities as they affect the parties and the public.” Id. (quoting
Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 513 (Fed. Cir. 1990) (internal
quotation marks omitted)).
       When determining whether to grant a motion for injunction pending appeal, the Court
considers: “(1) whether the movant has made a strong showing that it is likely to succeed on the


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merits; (2) whether the movant will be irreparably injured absent an injunction; (3) whether
issuance of the injunction will substantially injure the other interested parties; and (4) where the
public interest lies.” Id. at 184 (citing Alaska Cent. Express, Inc. v. United States, 51 Fed. Cl.
227, 229 (2001)). The Court has flexibility when weighing these factors. Id. And so, the Court
“may allow for an injunction pending appeal when the movant ‘establishes that it has a strong
likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a
substantial case on the merits,’ provided the other factors miliate in [the] movants favor.” Akima
Intra-Data, LLC v. United States, 120 Fed. Cl. 25, 28 (2015) (emphasis original) (citing
Standard Havens Prods., 897 F.2d at 513 (citations omitted)).

IV.       LEGAL ANALYSIS

          WellPoint has not made a strong showing that it is likely to succeed upon the merits on
appeal, or that the equities weigh in favor of granting injunctive relief in this case. And so, for
the reasons set forth below, the Court DENIES WellPoint’s motion for an injunction pending
appeal.

          In its motion for an injunction pending appeal, WellPoint argues that it is entitled to this
extraordinary relief because Optum will transition to performance of the Contract, thereby
undermining WellPoint’s competitive posture, absent injunctive relief. Pl. Mot. at 1. WellPoint
also argues that it has a substantial likelihood of success on appeal because: (1) the Court erred
in concluding that the VA’s source selection authority reasonably considered price during the
best value trade-off analysis for the Solicitation; (2) the Court erred in upholding the VA’s
“disparate evaluation” of the Solicitation’s Corporate Experience/Capability Subfactor; and (3)
the Court’s findings regarding whether WellPoint has been prejudiced by the VA’s alleged
evaluation errors in this matter “constitute clear error.” Pl. Mem. at 5-19.

          The government and Optum counter in their respective responses and oppositions to
WellPoint’s motion that WellPoint has neither demonstrated a likelihood of success on appeal,
nor shown that it would be irreparably harmed in the absence of injunctive relief. Def. Resp. at
4-19; Def.-Int. Resp. at 4-11. The Court agrees.




                                                                                                         4
        A.      WellPoint Has Not Shown A Strong Likelihood Of Success On The Merits

        As an initial matter, WellPoint has not made a strong showing that it is likely to succeed
upon the merits of any of its claims on appeal. WellPoint largely restates the argument that it
previously and unsuccessfully advanced in this litigation—that the VA committed a
mathematical error in calculating the amount of the cost savings that WellPoint would provide to
the government in comparison to Optum—to support its request for injunctive relief. Pl. Mem.
at 5-17.

        As the Court held in the August 1, 2019, Decision, the administrative record shows that
the VA’s methodology for evaluating WellPoint’s cost savings and price was both reasonable
and in accordance with the terms of the Solicitation. WellPoint Military Care Corp., 2019 WL
4049168, at *13; see also AR Tab 82 at 16922.13-14; AR Tab 87 at 17099; AR Tab 123 at
41167 (showing that the Solicitation required the VA to evaluate price by calculating the
cumulative weighted score for each offeror and evaluating each offerors’ unit price for the base
and option periods, and that the VA compared each offerors’ cumulative weighted score with the
Independent Government Cost Estimate). Indeed, while WellPoint argues that “[t]his protest is
about a material, objective math error,” its claim is, at bottom, a challenge to the methodology
that the VA employed to evaluate price. Pl. Mem. at 5. The record evidence shows that the VA
employed a methodology to evaluate price that is consistent with the terms of the Solicitation.1
AR Tab 87 at 17099. And so, WellPoint has not shown a strong likelihood of success with
respect to its claim.

        WellPoint’s argument that an injunction pending appeal is warranted because the VA
“disparately evaluated” offerors’ corporate experience under the Solicitation’s Corporate
Experience/Capability Subfactor is also unconvincing. Pl. Mem. at 11-17. WellPoint argues that
the August 1, 2019, Decision does not address the fact that the VA considered WellPoint’s
corporate experience, based upon, among other things, WellPoint’s attributes as a prime
contractor, while the VA only considered Optum’s corporate experience, based upon the
experience of Optum’s “corporate family” when evaluating Optum’s corporate experience. Id. at


1
  As the government correctly observes in its response and opposition to WellPoint’s motion, the VA had
no obligation to calculate the difference between each offerors’ cumulative weighted score in the manner
that WellPoint requests in this case. Def. Resp. at 8-9.


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11. But, even if WellPoint is correct in arguing that the VA erred by evaluating Optum and
WellPoint differently under the Solicitation’s Corporate Experience/Capability Subfactor, the
record evidence shows that WellPoint has not been prejudiced by this error. As the Court held in
the August 1, 2019, Decision, the record evidence shows that the weakness that the VA assigned
to WellPoint’s proposal for lack of direct corporate experience did not impact the agency’s best
value determination and award decision in this case. WellPoint Military Care Corp., 2019 WL
4049168, at *11-12; see also Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir.
2005). The VA’s decision to approach the evaluation of corporate experience differently with
regards to WellPoint and Optum also finds support in the administrative record. The record
evidence shows that WellPoint stated in its proposal that it would be the “accountable
organization” for the Contract. AR Tab 78 at 1541. By comparison, Optum stated that its
corporate affiliates would be responsible for performing the contract. AR Tab 79 at 16335.

       Because the record evidence shows that the VA reasonably evaluated WellPoint’s
proposal under the Solicitation’s Corporate Experience/Capability Subfactor—and that the
weakness assigned to WellPoint’s proposal for lack of direct corporate experience did not impact
the VA’s best value determination and award decision—WellPoint has not made a strong
showing that it is likely to succeed on appeal with respect to this claim. Chenga Mgmt., LLC. v.
United States, 96 Fed. Cl. 556, 585 (2010) (noting that, while a contracting agency must treat all
offerors equally, equal treatment does not require that all proposals be treated the same).

       WellPoint’s argument that the Court’s findings regarding prejudice in this case constitute
“clear error” is equally unavailing. Pl. Mem. at 17-19. In the August 1, 2019, Decision, the
Court recognized that WellPoint must show that the VA’s alleged evaluation errors prejudiced
WellPoint to prevail in this case. WellPoint Military Care Corp., 2019 WL 4049168, at *11; see
also Bannum, Inc., 404 F.3d at 1353. As the Court held in the August 1, 2019, Decision,
WellPoint fails to meet this standard because the record evidence shows that the VA did not
consider the weakness assigned to WellPoint’s proposal for lack of direct corporate experience in
making the agency’s best value determination and award decision. WellPoint Military Care
Corp., 2019 WL 4049168, at *11-12; AR Tab 87 at 17099. The Court also observed in the
August 1, 2019, Decision that WellPoint similarly fails to explain how it has been prejudiced by
the VA’s decision to assign a weakness to its proposal with regards to claims processing
approach, because the administrative record shows that the VA also did not consider this
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weakness during the agency’s best value determination. WellPoint Military Care Corp., 2019
WL 4049168, at *11; AR Tab 93 at 17268; see also AR Tab 87 at 17099. Indeed, while
WellPoint argues that it has been prejudiced by the VA’s alleged evaluation errors, because it
“would certainly still be in the zone of active consideration for award,” but for these errors,
WellPoint simply has not shown that it would have had a substantial chance of being awarded
the Contract in the absence of the VA’s alleged evaluation errors. Pl. Mem. at 19; see also
Bannum, Inc., 404 F.3d at 1353. And so, again, WellPoint has not made a strong showing that it
is likely to succeed upon the merits of its claim on appeal. Acrow Corp., 97 Fed. Cl. at 182.

        B.      The Balance Of Harms And Public Interest Weigh Against Injunctive Relief

        The other equities that the Court considers when evaluating WellPoint’s motion for an
injunction pending appeal also weigh against granting such relief in this case. WellPoint argues
that it will suffer irreparable harm if the Court declines to enjoin Optum’s performance under the
Contract pending the resolution of its appeal, because WellPoint’s competitive advantage to
provide additional costs savings to the VA would be undercut. Pl. Mem. at 22. But, as the
government correctly observes in its response and opposition to WellPoint’s motion, such
economic harm is generally not, alone, sufficient to establish irreparable harm. Def. Resp. at 16;
see also Minor Metals, Inc. v. United States, 38 Fed. Cl. 379, 381-82 (1987). The Court also
observes that WellPoint would have the opportunity to compete during a new evaluation process
for the Contract, should the Federal Circuit determine that the VA must re-evaluate proposals in
this case. And so, WellPoint has not shown that it will be irreparably harmed should the Court
decline to enjoin Optum’s performance under the Contract.2

        The government also persuasively argues that a delay in the performance of the Contract
would be harmful to the Nation’s veterans, who will benefit from the quality of health care and
veteran customer service to be provided under the Contract. Def. Resp. at 19; see also Stone
Dec. at ¶¶ 6-12. The public has a strong interest in ensuring that the Nation’s veterans receive
timely and quality medical care and this interest could be placed in jeopardy if the Court were to


2
 It is also undisputed that full health care delivery will not be completed for the Contract until May 2020,
and that the prior incumbent’s contract will remain in place until September 2020. Def. Resp. at 18;
Stone Dec. at ¶¶ 14-15; Pl. Reply at 7. And so, the government persuasively argues that WellPoint should
have sufficient time to pursue its appeal before Optum would commence performance in this case. Def.
Resp. at 18.

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delay performance of the Contract. And so, for all of these reasons, the balance of the harms and
the public interest cumulatively weigh against granting WellPoint’s motion for an injunction
pending appeal. See RCFC 62(d).

V.     CONCLUSION

       In sum, WellPoint simply has not met its heavy burden to demonstrate that it is entitled to
the extraordinary remedy of an injunction pending the appeal of the Court’s August 1, 2019,
Decision. And so, the Court DENIES WellPoint’s motion for an injunction pending appeal.

       No 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 May
10, 2019. 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 October 21, 2019.

       IT IS SO ORDERED.



                                                   s/ Lydia Kay Griggsby
                                                   LYDIA KAY GRIGGSBY
                                                   Judge




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