           In the United States Court of Federal Claims
                                           No. 15-440C
                                (Filed Under Seal: May 29, 2015)
                            (Reissued for Publication: June 15, 2015) 1

 *****************************************
 BANNUM, INC.,                           *
                                         *
                  Plaintiff,             *
                                         *
 v.                                      *                   Preliminary Injunction; Judgment on
                                         *                   the Administrative Record;
 THE UNITED STATES,                      *                   Competition in Contracting Act,
                                         *                   31 U.S.C. § 3553(d)(3);
                 Defendant,             *                    Bid Protest; Solicitation; Override;
                                         *                   Stay; Residential Re-Entry Services
 and                                     *
                                         *
 DISMAS CHARITIES, INC.,                 *
                                         *
                  Defendant-Intervenor.  *
 ****************************************

Justin T. Huffman, Auburn, NY, with whom was Joseph A. Camardo, Auburn, NY, at argument,
for plaintiff.

Devin A. Wolak, United States Department of Justice, Washington, DC, for defendant.

Alexander D. Tomaszczuk, McLean, VA, for defendant-intervenor.

                                    OPINION AND ORDER

SWEENEY, Judge

        Before the court in this bid protest is plaintiff Bannum, Inc.’s motion for a preliminary
injunction and defendant’s cross-motion for judgment on the administrative record. Plaintiff was
the incumbent contractor providing the Federal Bureau of Prisons (“BOP”) with Residential
Reentry Center (“RRC”) Services for federal offenders (“inmates” or “residents”) in Clarksburg,
West Virginia. Prior to the expiration of plaintiff’s then-existing contract, the BOP issued a new
solicitation for RRC Services in northern West Virginia. Plaintiff and one other offeror
submitted proposals. During the procurement process, plaintiff filed one Government
Accountability Office (“GAO”) protest, and subsequently, two agency-level protests; all were

       1
          The court provided the parties with an opportunity to suggest redactions to this ruling,
but in a June 12, 2015 joint status report, they indicated that no redactions were necessary.
unsuccessful. Because these protests extended the procurement, the BOP entered into three
separate bridge contracts with plaintiff. Ultimately, the BOP awarded the new contract to
Dismas Charities, Inc. (“defendant-intervenor” or “Dismas”). Because it filed a postaward
protest with the GAO within ten days, plaintiff was entitled to an automatic stay pursuant to the
Competition in Contracting Act (“CICA”). See 31 U.S.C. § 3553(d)(3) (2012). During the
pendency of the GAO protest, plaintiff’s third bridge contract with the BOP expired. Rather than
enter into a fourth bridge contract with plaintiff, the BOP exercised its option under a separate
contract with defendant-intervenor to transfer some of the inmates to Dismas’s RRC facility
located in Charleston, West Virginia. The BOP transferred the remaining inmates to an RRC
facility in Pittsburgh, Pennsylvania operated by Renewal, Inc. (“Renewal”), pursuant to an
existing contract with it. The discrete issue in this protest is whether the BOP’s transfer of
residents from plaintiff’s Clarksburg RRC facility to defendant-intervenor’s and Renewal’s
respective RRC facilities, pursuant to contracts that are distinct from the one currently being
protested before the GAO, resulted in a de facto override of the CICA stay. For the reasons set
forth below, the court grants defendant’s motion and denies plaintiff’s motion.

                                      I. BACKGROUND

        On June 5, 2012, the BOP issued Request for Proposals (“RFP”) 200-1179-MA
 (“solicitation”), soliciting proposals to provide RRC Services for “male and female federal
 offenders” in any one of several named counties in northern West Virginia. 2 AR 1. The
 solicitation required the contractor to offer a community-based residential and nonresidential
 correctional service, including providing employment, residence development, and other self-
 improvement opportunities, in order to assist inmates in transitioning from a prison environment
 to the community at large. Id. at 47. On July 26, 2012, plaintiff filed a preaward bid protest
 with the GAO that challenged certain terms of the solicitation. Id. at 511-18. The BOP then
 extended the proposal submission deadline indefinitely, stating in its amendment to the
 solicitation that another amendment establishing the new proposal deadline would be issued at a
 later date. Id. at 235. Subsequently, on August 15, 2012, the BOP took corrective action by
 making certain revisions to the solicitation, and changing the proposal submission deadline to
 October 1, 2012. Id. at 236-37. The next day, or August 16, 2012, the GAO dismissed
 plaintiff’s protest as academic. Id. at 519.

        On February 11, 2013, the BOP sent both plaintiff and defendant-intervenor
 individualized letters stating that their respective proposals fell within the competitive range of
 the solicitation, and requesting additional information. Id. at 279, 456. Defendant then entered
 into discussions with Dismas between February and April 2013. Id. at 480, 486, 496. The BOP
 also engaged in discussions with plaintiff between February 2013 and June 2014. Id. at 305,
 343, 347, 356, 360, 423, 426, 436, 440, 443, 447. The BOP’s discussions with plaintiff during
 this period concerned various construction code and permit requirements for plaintiff’s plans to
 repair and improve its facility, and also pertained to plaintiff’s goal of constructing a new
 parking lot. Id. at 423-55. During these discussions, plaintiff filed two agency-level protests.


       2
         The court derives the facts in the “Background” section from the administrative record
(“AR”) and from the appendix attached to defendant’s response to plaintiff’s motion for a
preliminary injunction (“Def.’s App’x).
                                                 2
The first was filed on January 7, 2014, id. at 520, which the BOP denied on February 20, 2014,
id. at 522. Plaintiff filed its second agency-level protest on June 11, 2014, id. at 523, which the
BOP denied in part and dismissed in part on July 17, 2014, id. at 528.

       At the time that the solicitation was issued in 2012, plaintiff was in the incumbent
contractor for the existing BOP contract for RRC Services in Clarksburg, West Virginia. Id. at
539. That contract expired on July 31, 2013. Id. at 711. Subsequently, because the
procurement was ongoing, defendant issued a limited sole-source bridge contract to plaintiff for
August 1, 2013, through February 28, 2014. Id. at 711, 715. Because no contract award had
been made by February 28, 2014, defendant entered into a second seven-month sole-source
bridge contract with plaintiff for March 1, 2014, through September 30, 2014. Id. at 727. At
the time that the second bridge contract expired and no contract award had been made, once
again, plaintiff was awarded a third seven-month sole-source bridge contract for October 1,
2014, through April 30, 2015. Id. at 736. In addition, on November 12, 2014, the BOP entered
into a contract modification to its existing contract with Dismas, “exercis[ing] a six-month
extension for [RRC] Services in Charleston[,] West Virginia” for December 1, 2014, through
May 31, 2015. Id. at 899.

        In early January 2015, BOP monitors visited plaintiff’s Clarksburg facility after a heavy
snowstorm. Id. at 798. They observed that water was leaking in several areas of the men’s
dormitory ceiling, causing damage that risked a ceiling collapse, among other hazards. Id.
After the BOP monitors expressed concerns, plaintiff’s facility manager contacted the
Clarksburg fire department, which inspected the space and found significant water penetration
that posed a threat to the electrical system. Id. Because the BOP monitors observed that the
ceiling tiles were falling, that the insulation and wood studs were saturated with water, and that
water continued to gather in the light fixtures, plaintiff relocated the residents to a hotel, so that
these issues could be resolved. Id. at 799-800. Before the residents were moved, John Rich,
plaintiff’s president, “disputed the need to relocate the residents” in an electronic-mail message.
Id. at 799. By January 13, 2015, the ceiling had stopped leaking, the lights were working again,
and the residents were moved back to plaintiff’s facility. Id. at 807.

       On January 22, 2015, the BOP issued to plaintiff a report, based on its full monitoring
inspection of plaintiff’s facility, describing the deficiencies that the monitors had observed. Id.
at 752. Specifically, the BOP found that: carpets throughout the facility were stained and dirty,
there was excessive dust and lint behind appliances, the refrigerator housing resident meals was
excessively dirty with mold and spilled liquids, and the resident food lockers were dirty and
contained a dark, sticky substance on the shelves. Id. at 754. In addition, plaintiff’s meal log
system did not provide any means by which defendant could ensure that the residents were
being fed. Def.’s App’x 5. When the BOP monitors weighed portions of a meal served on a
particular day to determine if dietary minimums were being met, they found that the meal
weights did not match menu requirements. Id. Specifically, they found that for several foods,
the served portion was often 0.3 ounces to 1.3 ounces less than what was required. Id.
Moreover, when plaintiff undertook medicine distribution, the tracking log numbers were at
times filled out incorrectly, with no running count of medication, and in some cases, no policies
and procedures regarding control and distribution of medication. Id.



                                                  3
       Further, plaintiff lacked satisfactory fire evacuation and emergency plans, and there was
no effective communication between plaintiff and the United States Probation Office’s staff.
AR 754. In addition, plaintiff lacked proper policies and procedures for a public information
program that offered ongoing, positive communication between the facility and the local
community, elected officials, law enforcement, and citizens. Id.

        On February 20, 2015, plaintiff submitted a thirteen-page response to the BOP’s report.
Id. at 770. Plaintiff indicated that it had cleaned the facility’s floors and food storage areas, but
disagreed with and challenged other findings in the report, asserting that some were not
violations of its contract with defendant, and demanding that at least one of the outlined
deficiencies be withdrawn. Id. at 770-82. The BOP provided plaintiff with its reply on March
6, 2015. Id. at 786. The BOP noted that plaintiff had resolved the sanitation issue, but disputed
many of plaintiff’s other contentions. Id. at 787-91. On March 13, 2015, plaintiff filed a
grievance regarding defendant’s January 2015 monitoring report, and the BOP responded on
May 1, 2015, sustaining all of the contracting officer’s original conclusions that were adverse to
plaintiff. Id. at 833-35.

        With respect to the solicitation, the BOP made twelve minor amendments thereto, 3 id. at
229-74, and on March 30, 2015, awarded Dismas the contract to provide RRC Services for
northern West Virginia. Id. at 275. This was not the first time that defendant entered into a
contract with defendant-intervenor for RRC Services. The two parties had previously signed a
contract for RRC Services in 2008, which had been modified on several occasions thereafter.
Id. at 874-903.

       On March 31, 2015, plaintiff submitted to the BOP a claim protesting the contract award
to defendant-intervenor and alleging that the BOP had engaged in “intentional, bad faith
conduct” and “breaches of contract.” Id. at 836. Plaintiff also filed the aforementioned GAO
protest on April 6, 2015, arguing that:

     (1) the BOP improperly accepted Dismas’s untimely submitted proof of all zoning
     and local ordinance requirements necessary for the operation of Residential Reentry
     Center at its facility locations, in violation of the terms of the RFP; (2) the BOP
     improperly delayed the award of the contract in order to improperly allow Dismas
     additional time to provide the approved to use; (3) the proof of zoning provided by
     Dismas was in violation of City ordinances, and; (4) the BOP improperly used its
     monitoring authority of Bannum’s performance to downgrade Bannum’s Past
     Performance evaluation.

Id. at 531. Because plaintiff filed a protest with the GAO, on April 10, 2015, the BOP issued a
Stop-Work Order requiring that “[a]ll [RRC] services, subcontracting, and all actions pertaining
to [the northern West Virginia] contract [be] suspended.” Id. at 277. The Stop-Work Order set
forth that “[a]ll performance must be stopped from the effective date of the stay of


      3
         Defendant made such amendments on: June 6 and 29, 2012; July 31, 2012; August 15,
2012; September 12, 2012; February 7, 2013; August 5, 2014; December 29, 2014; January 14
and 21, 2015; and February 19, 2015.
                                                 4
performance.” Id. On that same date, the BOP sent defendant-intervenor a letter informing it
that plaintiff’s GAO protest had been filed, and stating that “[a]s a result, performance under
Contract No. DJB200232, awarded to Dismas Charities, Inc. on March 30, 2015, must be
stayed, pending disposition of the protest, or until otherwise authorized under [BOP]
procedures.” Id. at 278. The letter continued, “[e]ffective April 10, [2015], this letter and
attached modification 0001 suspends any and all performance under Contract No. DJB200232.”
Id.

       Subsequently, the BOP notified plaintiff in two separate letters, both dated April 14,
2015, of two infractions at plaintiff’s Clarksburg facility. In one letter, the BOP indicated that it
had received evidence that the director of the facility had arrived at work intoxicated and had
exhibited unprofessional conduct. Id. at 827. In the other notice, the BOP stated that a
Counselor Aide had engaged in discrimination and unprofessional conduct. Id. at 832. The
BOP directed plaintiff to restrict both individuals from working with federal inmates at the
Clarksburg facility until further notice. Id. at 827, 832. Mr. Rich responded to each notice by
electronic-mail message. Id. at 828, 831. He addressed each message to Timothy Barnett, a
BOP Residential Reentry Manager, stating that defendant had not provided evidence of the
respective allegations, demanding the specifics of each infraction, “object[ing]” to the BOP’s
“course of conduct,” contending that the “letter[s] and [Mr. Barnett’s] actions [we]re
contractually unacceptable” to plaintiff, and concluding that Mr. Barnett should “GOVERN
[HIM]SELF ACCORDINGLY.” Id. at 828-29. The next day, April 15, 2015, plaintiff filed a
claim with the BOP for “contract interpretation and intentional interference with [plaintiff’s]
contract.” Id. at 859-60.

       Plaintiff’s third seven-month sole-source bridge contract to provide RRC Services for the
BOP in Clarksburg expired on April 30, 2015. Id. at 737. On April 17, 2015, Thomas DiPaola,
a Sector Administrator in the Residential Reentry Management Branch at the BOP, sent an
electronic-mail message to BOP employees Peter Brustman and Clay B. Kiser, as well as others
stating that plaintiff’s third bridge contract would expire on April 30, 2015, and that Dismas
“ha[d] been awarded the new contract with a scheduled start date of August 1, 2015.” Id. at
866. He continued:

     In the meantime, [plaintiff] has filed a protest and [Office of General Counsel
     (“OGC”)] and contracting are working on the resolution of this issue.

     After consultation with OGC and Contracting, Eastern Sector has developed a plan
     for movement of the inmates upon expiration of the Bannum contract on April 30,
     2015. This plan includes moving the inmates into other facilities and a plan for
     continued programming at those facilities.

     We are fortunate to have a few facilities within a few hours[’] travel time from
     Clarksburg, WV. . . .

     Please note that CBR staff will start the re-routing of the referral packets asap and
     then oversee the inmate transfer process on the evening of Thursday[,] April 30,
     2015.

                                                 5
Id. Mr. DiPaola’s message also indicated that in total, forty-two inmates would be relocated. Id.
Of these, twenty-three inmates would be assigned to Renewal’s Pittsburgh, Pennsylvania
facility, 4 which included eighteen inmates who would receive RRC Services at the facility and
five inmates who would be relegated to home confinement. Id. The remaining nineteen inmates
would be assigned to defendant-intervenor’s Charleston, West Virginia facility, of which eight
inmates would receive RRC Services at the facility, and eleven inmates would be relegated to
home confinement. Id. Thus, twenty-six of the forty-two inmates would be physically moved to
these other facilities, while the remaining sixteen would be assigned to home confinement. Id. at
866-70. On April 27, 2015, defendant notified plaintiff of its decision to relocate the inmates
upon expiration of the third sole-source bridge contract. See id. at 871-72.

                                 II. PROCEDURAL HISTORY

        On May 1, 2015, plaintiff filed the present bid protest and motion for a preliminary
injunction. Plaintiff contends that after filing its bid protest with the GAO, it was entitled to an
automatic stay pursuant to CICA. Plaintiff argues that because the BOP failed to provide the
requisite written notice of its decision to transfer inmates to defendant-intervenor’s and
Renewal’s respective facilities, the transfer amounted to a de facto override of the stay, thus
violating CICA. Further, plaintiff alleged in its complaint that the BOP, particularly Mr. Barnett,
demonstrated bad faith when dealing with plaintiff. Compl. ¶ 32. However, plaintiff abandoned
its bad faith claim(s) at oral argument, Oral Argument of May 15, 2015, Argument of Mr. Joseph
A. Camardo at 2:40:11. 5 Defendant filed a response and cross-motion for judgment on the
administrative record; defendant-intervenor filed a response; and plaintiff submitted its reply.
Oral argument was conducted on May 15, 2015.

                                   III. LEGAL STANDARDS

                                          A. Bid Protests

        The United States Court of Federal Claims has “jurisdiction to render judgment on an
 action by an interested party objecting to . . . 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) (2012). Interested parties are those “prospective bidders or offerors whose direct
 economic interest would be affected by the award of the contract or by failure to award the
 contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001).
 Further, the United States Court of Appeals for the Federal Circuit has held that this court
 possesses jurisdiction to review an alleged violation of a CICA stay of performance under its
 bid protest jurisdiction. RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1290
 (Fed. Cir. 1999).


       4
        The BOP and Renewal previously signed a contract for RRC Services on June 28,
2010, which allowed for the provision of such services through July 31, 2015. AR 904-905.
       5
           The oral argument held on May 15, 2015, at 2:30 p.m. Eastern Daylight Time was
recorded using the court’s Electronic Digital Recording (“EDR”) system. The times noted in
citations to the oral argument refer to the EDR of the oral argument.
                                                  6
        When resolving a motion that arises from a bid protest, the court reviews the challenged
 agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4).
 Although section 706 contains several standards, “the proper standard to be applied in bid
 protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency
 action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
 law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Under
 this standard, the court “may set aside a procurement action if ‘(1) the procurement official’s
 decision lacked a rational basis; or (2) the procurement procedure involved a violation of
 regulation or procedure.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
 2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
 1332 (Fed. Cir. 2001)). When a protester claims that the procuring agency’s decision violates a
 statute, regulation, or procedure, it must show that the violation was “clear and prejudicial.”
 Impresa, 238 F.3d at 1333 (internal quotation marks omitted). “The arbitrary and capricious
 standard applicable [in bid protests] is highly deferential.” Advanced Data Concepts, 216 F.3d
 1054, 1058 (Fed. Cir. 2000).

                                B. Preliminary Injunctive Relief

        Courts “ordinarily refrain from interference with the procurement process . . . .” United
States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (Fed. Cir. 1983). In bid protests, the
Tucker Act provides that

      the court may award any relief that the court considers proper, including declaratory
      and injunctive relief except that any monetary relief shall be limited to bid
      preparation and proposal costs.

      [T]he court shall give due regard to the interests of national defense and national
      security and the need for expeditious resolution of the action.

28 U.S.C. § 1491(b)(2)-(3). Preliminary injunctive relief is an extraordinary and drastic remedy,
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam), and the decision to grant
injunctive relief falls within the sound discretion of the trial court, FMC Corp. v. United States, 3
F.3d 424, 427 (Fed. Cir. 1993); see also PGBA, LLC v. United States, 389 F.3d 1219, 1225-26
(Fed. Cir. 2004) (determining that the statutory scheme for reviewing procurements “does not
deprive a court of its equitable discretion in deciding whether injunctive relief is appropriate”).

        As the United States Supreme Court has held, a preliminary injunction is designed
“merely to preserve the relative positions of the parties until a trial on the merits can be held.”
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The standard for determining whether to
grant a preliminary injunction in bid protests is well established. In order to secure such relief,
the moving party must demonstrate that: (1) it is likely to succeed on the merits; (2) it will be
irreparably harmed without injunctive relief; (3) the harm it will suffer outweighs the harm to the
government and to third parties; and (4) the public interest favors the grant of injunctive relief.
Am. Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir. 2010) (citing Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 19 (2008)); FMC Corp., 3 F.3d at 427. “No single
factor is determinative, and the weakness of the showing regarding one factor may be overborne
by the strength of the others.” FMC Corp., 3 F.3d at 427. Nevertheless, “the absence of an
                                                  7
adequate showing with regard to any one factor may be sufficient, given the weight or lack of it
assigned the other factors, to justify . . . denial” of a preliminary injunction. Chrysler Motors
Corp. v. Auto Body Panels of Ohio, Inc., 908 F.2d 951, 953 (Fed. Cir.1990). Because injunctive
relief is relatively drastic in nature, a plaintiff must demonstrate that its right to such relief is
clear. See Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 380-81 (2003), aff’d,
365 F.3d at 1345; Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 566 (2000).

                                              C. CICA

        Under CICA, if a federal agency “awarding [a] contract [pursuant to a procurement]
receives notice of a protest” within ten days of the contract award or five days of a required
debriefing offered to an unsuccessful offeror, whichever is later, “the contracting officer may not
authorize performance of the contract to begin while the protest is pending[,]” or if performance
had begun prior to the protest, “the contracting officer shall immediately direct the contractor to
cease performance under the contract and to suspend any related activities that may result in
additional obligations being incurred by the United States under that contract.” 31 U.S.C.
§ 3553(d)(3) (2012); see also id. § 3553(d)(4); 48 C.F.R. § 33.104(c)(1). Pursuant to 48 C.F.R.
§ 33.104(d), if the contracting officer decides to proceed with the contract award or continue
performance, thus overriding the stay, the contracting officer must furnish the protestor and other
interested parties with written notice of that decision.

                                        IV. DISCUSSION

        As described earlier, plaintiff was the incumbent contractor providing the BOP with RRC
Services in Clarksburg, West Virginia. AR 711. On June 5, 2012, the BOP issued the RFP,
seeking RRC Services for inmates in northern West Virginia. Id. at 1. For the next three years,
plaintiff filed three protests that delayed the award of the contract. The procurement continued,
and plaintiff’s existing contract expired on July 31, 2013. Id. at 711. Consequently, in the
absence of a contract award, the BOP executed three consecutive seven-month sole-source
bridge contracts with plaintiff. Id. at 711, 715, 727, 736. Ultimately, on March 30, 2015, while
plaintiff’s third sole-source bridge contract was ongoing, defendant awarded the contract for
RRC Services in northern West Virginia to Dismas. Id. at 275. On April 6, 2015, plaintiff filed
its protest with the GAO, id. at 531, and on April 10, 2015, the BOP suspended all actions
pertaining to the newly awarded contract to Dismas, id. at 275, 277-78. Because plaintiff filed
its protest within five days of receipt of the debriefing letter, plaintiff was entitled to an
automatic stay under CICA. 48 C.F.R. § 33.104(c)(1). Plaintiff’s third seven-month sole-source
bridge contract expired on April 30, 2015. AR 736. After that date, defendant transferred the
inmates from plaintiff’s Clarksburg facility to defendant-intervenor’s facility in Charleston, West
Virginia and Renewal’s facility in Pittsburgh, Pennsylvania. Id. at 866.

        In its motion, plaintiff contends that because defendant failed to provide the requisite
written notice of the transfer of inmates, the transfer amounted to a de facto override of the
automatic stay, thus violating CICA. Pl.’s Mot. 4, 7. Plaintiff alleges injury arising from the
transfer of inmates, which required Bannum to shut down its Clarksburg facility, resulting in the
loss of a significant number of employees. Id. at 4-5. Additionally, plaintiff argues that an
injunction is justified because the transfer of inmates to two other cities, each over 100 miles

                                                  8
away, interrupted the inmates’ “entire treatment plan” by severing their ties with the Clarksburg
community. Id. at 5. Given the totality of the circumstances, plaintiff asserts, the BOP should be
preliminarily enjoined from transferring the inmates to defendant-intervenor’s and Renewal’s
respective facilities. Id. at 14.

         The court rejects plaintiff’s contentions. First, plaintiff cannot prevail because the BOP’s
transfer of the inmates to other RRC facilities pursuant to separate, pre-existing contracts
between the BOP and Dismas, and between the BOP and Renewal, respectively, did not
constitute a de facto override of the CICA stay. The newly awarded contract for RRC services in
northern West Virginia, which is the subject of the pending protest before the GAO, is wholly
distinct from the extension of the BOP’s pre-existing contract with Dismas and from the use of
the BOP’s pre-existing contract with Renewal to provide RRC Services at their respective
facilities in Charleston, West Virginia and Pittsburgh, Pennsylvania. Indeed, “[w]hile an
override is meant to authorize performance on the protested contract because of special
circumstances,” the extension of a pre-existing contract to provide services during the pendency
of the protest is “a separate, self-contained contract.” Access Sys., Inc. v. United States, 84 Fed.
Cl. 241, 243 (2008). For example, the BOP’s three seven-month sole-source bridge contracts
with plaintiff were merely “interim contract[s]” to perform the “exact same services” required by
the June 2012 solicitation. Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 708
(2006). These contracts were initiated to fulfill the BOP’s need for RRC Services as the
procurement process continued, and were different from the contract that was ultimately awarded
to defendant-intervenor pursuant to the solicitation. Similarly, when plaintiff’s third bridge
contract expired on April 30, 2015, the BOP’s transfer of some inmates from plaintiff’s facility
to defendant-intervenor’s facility constituted an extension of a pre-existing contract to perform
the same services required by the solicitation, in order to fulfill the BOP’s need for RRC
Services during the pendency of the GAO protest. Along the same lines, the BOP’s transfer of
the remaining inmates from plaintiff’s facility to Renewal’s facility was the use of an existing
contract to obtain the same services required by the solicitation. The BOP’s extension of its pre-
existing contract with Dismas and the BOP’s use of its pre-existing contract with Renewal is
different from the newly awarded contract award that plaintiff is protesting before the GAO.

        Plaintiff contends that “some amount of th[at newly awarded] contract work (i.e. inmate
referrals) [is] being given to” Dismas under the extension of its pre-existing contract with the
BOP, and that the court in Access Systems held that that is a “functional equivalent of an
override.” Pl.’s Reply 3. Contrary to plaintiff’s assertion, in Access Systems, the court
specifically held that if the other “contract is for the identical . . . services involved in the original
contract, this fact alone is insufficient to prove that the [other] contract is an iteration, in whole
or in part, of the original contract and, thus, an override.” 84 Fed. Cl. at 243. Indeed, the court
reasoned that “[c]ontracts may share the same subject matter and yet remain separate and distinct
from one another,” and that the other “contract is not a partial iteration of the original contract
but is a new contract with a distinct character and function.” Id. Thus, even as the subject matter
of the two contracts here is the same—i.e. providing RRC Services to the same group of
inmates—the contracts are distinct, and therefore, extending the BOP’s pre-existing contract
with Dismas did not override the stay of the newly awarded contract pursuant to the solicitation.
        Second, the court is similarly unpersuaded by plaintiff’s argument that there was no
reason for the transfer of inmates because, as the incumbent contractor, it had a “fully compliant

                                                    9
facility.” Pl.’s Mot. 8. Pursuant to 18 U.S.C. § 3621(b), Congress conferred on the BOP the
authority and discretion to “designate the place of [a federal] prisoner’s imprisonment.” The
BOP “may designate any available penal or correctional facility that meets minimum standards
of health and habitability established by the [BOP], whether maintained by the Federal
Government or otherwise . . . that the [BOP] determines to be appropriate and suitable,
considering . . . the resources of the facility contemplated[,]” among other factors. 18 U.S.C.
§ 3621(b). Moreover, the BOP “may at any time, having regard for the same matters, direct the
transfer of a prisoner from one penal or correctional facility to another.” Id. Here, plaintiff
provides no evidence for its contention that its facility was fully compliant. It appears that the
predicate for plaintiff’s argument is its sense of entitlement to a fourth bridge contract. There is
no legal support for plaintiff’s view. The law is well settled that the court will not consider
arguments made without proper substantiation. Gilda Indus. Inc. v. United States, 446 F.3d
1271, 1281 (Fed. Cir. 2006) (stating that attorney argument is not considered evidence).

        Third, there is no dispute that the BOP retained the authority conferred upon the agency
by Congress to make the decision regarding where to assign inmates. The court notes that the
BOP’s inspection of plaintiff’s Clarksburg facility revealed concerns regarding sanitary
conditions, inmates’ physical safety, and satisfactory provision of food and medicine. The BOP
was also aware of unprofessional conduct demonstrated by two of plaintiff’s staff members, one
who engaged in discriminatory behavior, and the other, the director of the facility, who arrived at
work intoxicated. It is clear that the BOP exercised the discretion granted to it by Congress
when declining to offer plaintiff a fourth bridge contract, and instead chose to exercise its rights
under separate, pre-existing RRC Services contracts with defendant-intervenor and Renewal,
respectively. See Def.’s App’x 4-6. Moreover, defendant merely extended its pre-existing
contract with Dismas and used its pre-existing contract with Renewal to meet the ongoing need
for RRC Services until the current GAO protest is resolved.

         Finally, plaintiff objects to defendant-intervenor receiving a transfer of inmates pursuant
to its separate, pre-existing contract with the BOP, arguing that the inmates should have been
temporarily transferred to plaintiff’s Wheeling, West Virginia facility, instead. 6 Pl.’s Reply 3.


       6
           In its “Reply Memorandum and Opposition to Defendant’s Cross-Motion for Judgment
on the Administrative Record,” plaintiff argues for the first time that defendant’s decision not to
transfer the inmates to plaintiff’s Wheeling facility lacked a rational basis. Pl.’s Reply 5. At oral
argument, plaintiff explained that it raised this argument for the first time in the reply brief
because it was unaware of which inmates were “being assigned” to which facilities, and overall,
“what was happening,” and that it only learned this information after defendant filed Mr.
DiPaola’s affidavit outlining this information. Oral Argument of May 15, 2015, Argument of
Mr. Joseph A. Camardo at 2:48:16. In response, defendant argued that plaintiff was aware that
inmates were being transferred to Charleston, West Virginia well before defendant filed Mr.
DiPaola’s affidavit, as plaintiff referenced this location by name in its motion and specifically
noted that inmates were being reassigned there. Oral Argument of May 15, 2015, Argument of
Mr. Devin A. Wolak at 3:12:25. Further, defendant contended, plaintiff would have known well
before the affidavit was filed that no inmates were not being transferred to its Wheeling facility
because, as it is its own facility, it would be aware of any inmates being transferred there. Id. at
3:12:36. Thus, defendant argued, plaintiff had no justification for raising the argument for the
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Plaintiff provides no evidence or case law to support its argument that an agency must choose the
incumbent contractor when contemplating an interim contract or the extension of a pre-existing
contract. Further, the presumption of agency regularity renders an explanation unnecessary
“unless that presumption has been rebutted by record evidence suggesting that the agency
decision is arbitrary and capricious.” Impresa, 238 F.3d at 1338. Plaintiff abandoned any claim
related to bad faith at oral argument, see supra Section II, and thus, those arguments are deemed
withdrawn.

        In sum, because the separate, pre-existing contract between the BOP and Dismas, as well
as the separate, existing contract between the BOP and Renewal, are distinct from the contract
awarded pursuant to the June 2012 solicitation, the court finds that the transfer of inmates to
defendant-intervenor’s facility in Charleston, West Virginia and Renewal’s facility in Pittsburgh,
Pennsylvania was not a de facto override of the automatic CICA stay. See Access Sys., 84 Fed.
Cl. at 243 (finding that because the other contract was different from the contract subject to the
protest, it was “not an override of the automatic stay” required by CICA). The absence of an
override leads inextricably to the conclusion that the automatic stay pursuant to CICA was not
violated. Accordingly, the court need not engage in a merits evaluation concerning whether a de
facto override of the stay was defensible.

                                       V. CONCLUSION

        The BOP’s use of a pre-existing RRC Services contract with Dismas and its use of an
existing contract with Renewal to transfer inmates is separate and distinct from its March 30,


first time in its reply brief. Id. at 3:14:30. Plaintiff then responded that when it argued that the
BOP should have considered plaintiff’s Wheeling facility as an option when transferring
inmates, plaintiff was not raising a new protest ground. Oral Argument of May 15, 2015,
Argument of Mr. Joseph A. Camardo at 3:24:50. Rather, plaintiff explained, it was merely
providing a reason as to why defendant did not satisfy the four factors set forth in Reilly’s that
determine if an agency’s override decision should be upheld as valid. Id. at 3:24:50-3:25:48; see
Reilly’s, 73 Fed. Cl. at 711. Because the court has determined that no de facto override
occurred, it need not reach the Reilly’s analysis that plaintiff references, and consequently, it
need not consider plaintiff’s argument that the BOP should have transferred inmates to the
Wheeling facility. Moreover, even if plaintiff had attempted to raise the argument as a new
ground to challenge the agency’s action, it would be waived because it was first introduced in the
reply brief. United States v. Ford Motor Co., 463 F.3d 1267, 1277 (Fed. Cir. 2006) (explaining
that “[a]rguments raised for the first time in a reply brief are not properly before this court” and
that “[i]t is unfair to consider an argument to which the government has been given no
opportunity to respond”); Norman v. United States, 429 F.3d 1081, 1091 n.5 (Fed. Cir. 2005)
(adhering to the rule that arguments raised for the first time in a reply brief are not properly
before the court); Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (stating
that raising an issue “for the first time in a reply brief does not suffice; reply briefs reply to
arguments made in the response brief—they do not provide the moving party with a new
opportunity to present yet another issue for the court’s consideration”); Carahsoft Tech. Corp. v.
United States, 86 Fed. Cl. 325, 338 n.11 (2009) (holding that arguments presented for the first
time in a reply brief should be disregarded by the court).
                                                11
2015 contract award to Dismas arising from the June 2012 solicitation. Because the court finds
that the transfer of inmates did not constitute a de facto override of the automatic stay required
by CICA, plaintiff has not met its burden to establish its entitlement to a preliminary injunction.
Accordingly, the court GRANTS defendant’s cross-motion for judgment on the administrative
record, and DENIES plaintiff’s motion for a preliminary injunction. No costs. The clerk is
directed to enter judgment accordingly.

        The court has filed this ruling under seal. The parties shall confer to determine proposed
redactions, and by no later than Friday, June 12, 2015, file a joint status report indicating their
proposed redactions. A copy of those pages of the court’s ruling containing proposed
redactions shall be attached, with the proposed redactions clearly indicated, to the parties’
status report.

       IT IS SO ORDERED.


                                                      s/ Margaret M. Sweeney
                                                      MARGARET M. SWEENEY
                                                      Judge




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