                United States Court of Federal Claims
                                    No. 14-1028 C
                       (Filed Under Seal: September 21, 2015)
                             (Reissued: October 8, 2015)
_________________________________________

CROWLEY TECHNICAL
MANAGEMENT, INC.,
                                                             Bid Protest; Motion for
                      Plaintiff,                             Judgment on the Administrative
                                                             Record; Permanent Injunctive
v.                                                           Relief; Public Interests in
                                                             Military Operations; Fuel Cost
THE UNITED STATES,                                           Realism Analysis

                      Defendant,
and

MAERSK LINE, LIMITED,

                      Defendant-Intervenor.
_________________________________________

       James Y. Boland, Esq., Venable LLP, Baltimore, MD, for plaintiff.

       Alexander O. Canizares, Esq., United States Department of Justice, Washington, DC, for
defendant.

       John H. Bennett, Esq., McKenna Long & Aldridge, Washington, DC, for defendant-
intervenor.

                                 OPINION AND ORDER

Block, Judge.
       The United States Navy’s Military Sealift Command (“MSC”), originally known as the
Military Sea Transport Service, was established during World War II to be the “single managing
agency for the Department of Defense’s ocean transportation needs.”1 Today, MSC serves this

 This opinion originally was issued under seal on September 21, 2015. The court afforded the
parties an opportunity to propose redactions in the opinion prior to its publication. The court is
mindful of the sensitive nature of this case and has redacted price terms and other proprietary
information such as experience factor, sea margin, and fuel adjustment percentages. The redacted
opinion is herein reissued for publication, unsealed, with only minor alterations to account for
redactions.
1
 This and other information about the MSC is available online at:
http://www.msc.navy.mil/history.
country by executing its mission to “[o]perate the ships which sustain our warfighting forces and
deliver specialized maritime services in support of national security objectives in peace and war.”
Id. As part of this mission, MSC conducts procurements on behalf of other military components
in order to replenish our nation’s naval forces. Id.

        The case at bar concerns one such contract, awarded by MSC to Maersk Line Limited
(“Maersk”) for the enhancement and charter of a ship for use as a maritime support vessel.
Plaintiff, Crowley Technical Management, Inc. (“Crowley”) protests MSC’s evaluation of fuel
costs in connection with the procurement. Plaintiff avers that MSC conducted an “irrational and
unlawful evaluation” of the offerors’ projected fuel consumption costs and that consequently, its
findings were arbitrary, capricious, an abuse of discretion, and contrary to law. Plaintiff alleges
that but for MSC’s unlawful evaluation, its offer would have been accepted by MSC.

        Before the court are plaintiff’s motions for permanent injunctive relief and judgment on
the administrative record, filed pursuant to Rules 65 and 52.1(c) of the Rules of the Court of
Federal Claims (“RCFC”), as well as defendant and defendant-intervenor’s cross-motions for
judgment on the administrative record, filed pursuant to RCFC 52.1(c). For the reasons stated
below, the court will deny plaintiff’s motion for permanent injunction and judgment on the
administrative record and grant defendant and defendant-intervenor’s cross-motions for judgment
on the administrative record.

                                      I. BACKGROUND
A. The Solicitation

        On November 15, 2012, MSC issued a solicitation for the modification and charter of a
Maritime Support Vessel (“MSV”), to be used by the United States Special Operations Command
(“USSOCOM”). AR at 53. The solicitation instructed offerors to propose a “U.S. flagged, twin
shaft vessel,” which would then be substantially modified in order to enable the vessel to carry out
the MSC’s mission requirements. AR at 94. The listed mission requirements included the ability
to “launch, recover, refuel, and resupply small crafts, provide force protection and perform
stowing, and transport, launch/recover, and refuel both manned and unmanned rotary wing
aircraft.” Id. The retrofit vessel would have the capacity to host the ship’s crew and between 50
and 209 military personnel. Id.

        The solicitation provided a seven month ramp-up time, during which the contractor would
implement the required enhancements. AR at 73, 90, 95. In addition to the ramp-up time, the
solicitation’s base period included a five-month charter. Id. At the conclusion of this base period,
the solicitation’s terms granted MSC four one-year options to extend the charter. Id.

        Section M of the solicitation stated that the contract would be awarded to the lowest priced
technically acceptable offeror, in accordance with Federal Acquisition Regulation (“FAR”)
15.101-2. AR at 234-238. In other words, the evaluation factors other than price, namely technical
and past performance, would be evaluated on an “acceptable/unacceptable basis.” Id. at 234. For
this reason, the solicitation provided that “the offeror with the lowest evaluated price proposal and
acceptable past performance whose offer conforms fully to the solicitation requirements and meets
the acceptability standards for all non-price factors” would receive the contract. Id.




                                                -2-
        The price factor for each bid comprised the costs for “program management support of
ramp-up period, vessel modifications, charter hire and fuel for the firm and option time periods,
redelivery bonus (if offered), and any other costs . . . set forth in the offer.” AR at 236. Although
innocuous in appearance, the fuel cost component has become the grand issue in this case.

       The solicitation stated that fuel costs would be based on the “pre-modified” vessel’s fuel
consumption. AR at 237. To facilitate projecting these costs, the solicitation provided offerors
with operational assumptions such as percentage of time underway, at loiter/anchor, or at port and
weather conditions. AR tab 3a at 236; see AR 85 (Special Time Boxes 59-62); AR tab 3c at 394-
96 (Attachment 12). Offerors projected the fuel consumption of their proposed vessels in these
conditions to determine fuel cost. Id. But the solicitation provided that once the vessel was
modified, fuel costs would be recalculated. AR tab 28 at 2765. As a result, the offerors’ prices
included stand-in fuel cost numbers, to be replaced post-award. Id.

        MSC received thirteen proposals. AR at 1730-33. The agency deemed each of the
offerors’ technical and past performance factors to be acceptable. Id. Thus, MSC selected the
offeror with the lowest total price. On November 12, 2013, MSC awarded the contract at issue to
Maersk. AR at 1872-75. Maersk had proposed a cargo ship, the CRAGSIDE, and a total evaluated
price of $163,777,124.60. AR at 1858. Crowley, in contrast, had proposed [redacted], and a total
evaluated price of $[redacted]. Thus, the disparity between Maersk’s successful bid and
Crowley’s unsuccessful bid was $[redacted]. Notably, this disparity can be explained by
differences in fuel costs: Maersk had projected $20,628,066.59 in fuel costs, which was
$[redacted] lower than Crowley’s projected fuel costs of $[redacted]. As the court has alluded,
MSC’s treatment of these fuel costs is the subject of this bid protest.

B. Proceedings at the Government Accountability Office

       Shortly thereafter, on November 22, 2013, Crowley filed a protest of MSC’s award
decision at the Government Accountability Office (“GAO”). AR at 1879-2339. In its protest,
Crowley alleged that MSC had overlooked several flaws in Maersk’s fuel calculations. Id.
Crowley argued that these errors had resulted in Maersk understating its fuel costs and, therefore,
undermined MSC’s decision to award the contract to Maersk. Id.

       On January 10, 2014, MSC acknowledged that corrective action was warranted. AR at
2754. Accordingly, on January 16, 2014, the GAO dismissed Crowley’s protest on the grounds
that MSC’s corrective action rendered the protest academic. AR at 2755.

        MSC’s corrective action took the form of a cost realism analysis,2 in which the agency
reviewed the realism and methodology of the offerors’ underlying fuel calculations. AR tabs 26
& 27. To conduct the analysis, MSC established a Fuel Consumption Evaluation Team (“FCET”)
made up of naval engineers and architects. AR at 3217, 3585. The team was chaired by Olivia
Bradley, a supervisory contract specialist. Id. The FCET requested and received from each offeror
narrative explanations of the methodologies used to calculate their fuel consumption rates and then
proceeded to analyze that information. AR at 2768-3214, 3218.



2
  Cost realism is an analysis undertaken “to determine whether the estimated proposed cost
elements are realistic for the work to be performed; reflect a clear understanding of the
requirements; and are consistent with the unique methods of performance and materials described
in the offeror's technical proposal.” FAR 15.404-1(d)(1).
                                                -3-
        Crowley submitted three fuel consumption projection methods as part of its explanation,
methods A, B, and C. Method A, the method Crowley chose to employ in its actual bid, showed
the power use during a “ready state” of Crowley’s vessel in port with no passengers to be 500kW.
AR at 2906. Method B showed that a sister ship of Crowley’s vessel ran an average electrical load
of 613kW during voyages, ranging between 500kW and 800kW. Id. Method C suggested that the
electrical load for hotel services and accommodations would be approximately 250kW of power.
Tab 33b at 3208. In contrast to Methods A and B, which were based on the data of actual ships,
Method C was based on design information from the construction of Crowley’s ship. Id. FCET
considered Crowley’s explanation of its fuel costs and did not alter the projected fuel cost that
Crowley had used in reaching the offer price for its bid.

        FCET also examined Maersk’s responsive data and identified two “clerical errors” in
Maersk’s offer: an incorrect calculation involving an admiralty coefficient3 and an errant fuel
conversion from metric tons to barrels per day. AR at 3228, 3254. To correct these mistakes,
MSC adjusted Maersk’s most probable cost upward by $126,287.11 to a revised total cost of
$163,903,411.71, which was still lower than Crowley’s total evaluated price of $[redacted]. AR
at 3256. Accordingly, MSC reaffirmed its decision to award the contract to Maersk as the lowest
priced technically acceptable offeror.

        Unsatisfied with MSC’s adjustment of Maersk’s price, Crowley filed another GAO protest
on June 20, 2014. AR tab 38. Crowley’s June protest challenged the FCET’s cost realism findings,
arguing the FCET failed to detect other fuel calculation errors. Crowley also argued that the
method used by the agency to evaluate the fuel data had the effect of overstating Crowley’s fuel
costs or understating Maersk’s. Id.

        Crowley’s argument that the FCET overlooked several additional fuel calculation errors
centers on an email from the original engine manufacturer (“OEM”) of Maersk’s vessel. AR at
tab 38. This email was submitted by Maersk in response to the FCET’s informational request
during its cost realism analysis. Tab 31a at 2802. The email demonstrated that Maersk’s
calculations incorrectly employed the “calorific” (that is caloric) values for marine diesel/gas oil
when Maersk proposed to use a different fuel type, intermediate fuel oil 180. Id.; Tab 47 at 3510-
11. Crowley contended that this “incorrect calorific value of fuel” resulted in understated costs.
AR tab 47 at 3500-01. The FCET accepted this argument, agreeing that Maersk had failed to
undertake the correct fuel conversion. AR at 3586. Accordingly, the agency adjusted Maersk’s
price upward by $1,158,092.58 to a total of $165,061,504.29, which was still lower than Crowley’s
$[redacted]. AR tab 154 at 3627.

        Additionally, Crowley contended that Maersk had failed to adhere to a direction in the
engine manufacturer’s email instructing Maersk to increase its fuel consumption estimates by
[redacted] percent4 for tolerance and [redacted] percent for each engine-driven pump, to account
for wear and tear. Tab 31a at 2802; Tab 47 at 3512. The dispute over whether Maersk accounted
for this [redacted]% in fuel markups, referred to by the parties as the “tolerance adjustment,” is
one of the principle questions before the court. Pl.’s Mot. at 19-38.

3
 An admiralty coefficient is a constant for a given hull that gives the approximate relationships
between propulsion power, ship speed, and displacement. The Basics of Ship Propulsion at 13.
Available online at: http://marine.man.eu/docs/librariesprovider6/propeller-aftship/basic-
principles-of-propulsion.pdf?sfvrsn=0.
4
 As mentioned, the tolerance adjustment, sea margin, and experience factor percentages have been
redacted as proprietary information at the request of the parties.
                                               -4-
        MSC rejected the tolerance adjustment argument because the agency determined that
Maersk had accounted for the cost of the [redacted]% increase with a separate [redacted]%
markup the company had applied its total fuel cost estimate, known as the “experience factor.”
AR tab 49 at 3586; see AR tab 31a at 2791. Maersk stated that the experience factor was a
[redacted]% hedge against general “business risk” that was applied to the total daily fuel
consumption rate. Pl.’s Mot. at 23-25. The FCET considered Maersk’s fuel calculation data,
collected during the agency’s fuel cost realism evaluation, and “concluded that this experience
factor is sufficient to account for the OEM-considered recommended adjustments for tolerance
and installed equipment; therefore, no adjustment is required.” AR tab 49 at 3586; see AR tab 31a
at 2791.

        Crowley also contended that MSC failed to evaluate offerors’ proposals on an “apples-to-
apples” basis by failing to “normaliz[e],” or adjust, the bids to reflect equivalent passenger load
assumptions. AR at 3297-98, 3502. Notably, Crowley’s proposal made fuel assumptions based
on a 285 person passenger load, whereas Maersk’s bid assumed zero passengers. AR at 3297-98.
Crowley pointed out that the solicitation “did not specify the number of passengers” and argued
that, consequently, neither offeror’s assumption was “incorrect” per se. AR at 3502. Nonetheless,
according to Crowley, these differing assumptions precluded a meaningful comparison of the
offeror’s bids. AR at 3297-98.

       Crowley claimed that its assumption of 285 passengers resulted in its ship’s electrical load
being overstated by 250 kilowatts and, consequently, its fuel cost estimates being overstated by
$2,458,750. AR at 3297-98. This 250 kilowatt electrical load was figure was drawn from the
aforementioned method C, included in Crowley’s fuel cost realism response. Had MSC
normalized the passenger assumptions by apply method C, Crowley’s total price would have been
$[redacted], which is $[redacted] cheaper than Maersk’s adjusted price5 of $165,061,504.29.

        But MSC rejected Crowley’s “apples-to-apples” argument, disclaiming responsibility for
the offerors’ assumptions about operating conditions for the pre-modified vessels, which MSC
said were “independently determined” by each offeror. AR tab 49 at 3588. In the alternative,
MSC found that even if it were to adjust Crowley’s fuel costs downward to account for the
differing fuel passenger assumptions, 6 Maersk’s offer would still be the lowest priced technically
acceptable offer. In making this determination, MSC relied on a declaration by Ms. Bradley, the
FCET chairperson, stating that Crowley’s passenger assumption accounted for $1,103,469.14 in
fuel costs, significantly less than Crowley’s claimed number of $2,458,750. AR tab 153, at 3626.
Ms. Bradley reached this figure by reducing the ship’s power usage by 113 kilowatts, a number
“derived from empirical data collected during actual ship and sister ship voyages.” Id.



5
 As explained above, FCET found that Maersk had understated its fuel price by applying the wrong
admiralty coefficient and the incorrect calorific value of fuel. FCET accordingly adjusted
Maersk’s total price upward from $163,777,124.60 to $165,061,504.29.
6
 It is worth noting that the offerors made differing assumptions on the impact of fuel consumption
while at “loiter/anchor.” AR tab 47 at 3492, 3502. The loiter/anchor condition was also not
defined by the solicitation and Crowley acknowledged that “to be consistent and ensure a common
basis for evaluation,” MSC “should have adjusted Maersk’s proposed fuel costs down by
$386,960.” AR at 3502. The FCET disagreed and did not adjust the parties’ offers to normalize
these assumptions. AR tab 49 at 3588.
                                               -5-
        After considering MSC’s arguments, the GAO denied Crowley’s protest on September 25,
2014. AR at tab 62. The GAO rejected Crowley’s calorific value argument as untimely, finding
it could have been raised during the solicitation. Id. The GAO was not persuaded by Crowley’s
tolerance argument, finding that the tolerance adjustments were accounted for in Maersk’s
[redacted]% experience factor. Id. Finally, GAO found that even if Crowley won its “apples-to-
apples” passenger assumption argument, Crowley could not establish that it was prejudiced
because, even after a downward adjustment of $1,103,469.14, Maersk would retain its status as
the lowest-priced technically acceptable offeror. Id. at 3971-72.

C. Proceedings Before This Court

        Crowley filed its complaint and a motion for a preliminary injunction in this court on
October 22, 2014. Dkt. No. 1. An initial status conference was held on October 27, 2014. Dct.
No. 13. During that conference, briefing on the merits and on plaintiff’s motion for injunctive
relief were combined. Dkt. No. 13. On November 11, 2014, plaintiff filed its motion for judgment
on the administrative record and motion for permanent injunction. Dkt. No. 23. On November
18, 2014, defendant filed its opposition and cross-motion for judgment on the administrative
record. Dkt. No. 27. On that same day, defendant-intervenor filed its opposition and cross-motion
for judgment on the administrative record. Dkt. No. 28. Oral argument was held on December 4,
2014.

                                       II. DISCUSSION
A. Motions for Judgment on the Administrative Record

         As explained above, plaintiff seeks both judgment on the administrative record and a
permanent injunction. The court now addresses the former. A judgment on the administrative
record is “properly understood as . . . an expedited trial on the record.” Bannum, Inc. v. United
States, 404 F.3d 1346, 1356 (2005). In bid protest cases, such as the one at bar, a court must weigh
the evidence in the record and determine whether the agency’s procurement decision was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5
U.S.C. § 706(2)(A); Bannum, Inc., 404 F.3d at 1351. To make this determination, the court must
decide if “the procurement official’s decision lacked a rational basis.” Weeks Marine, Inc. v.
United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009) (internal citations omitted). “To succeed . . .
the protestor must show that the agency failed to provide a ‘coherent and reasonable explanation
of its exercise of discretion.’” Wildflower Int’l, Ltd. v. United States, 105 Fed. Cl. 362, 385 (2012)
(quoting Banknote of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004)).
        “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is
not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983). This court “does not sit as a super source
selection authority to second guess agency procurement decisions. Rather, it is well established
that the Court should not substitute its judgment to assess the relative merits of competing
proposals in a Government procurement.” Ceres Envtl. Servs., Inc. v. United States, 97 Fed. Cl.
277, 307-08 (2011) (citing R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed.
Cir. 2003)). “Mere disagreement with an agency’s handling of a procurement matter falls short of
meeting the burden of proving that the process was arbitrary and capricious.” Blackwater Lodge
& Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009).




                                                -6-
        Additionally, applying this standard in the context of an agency’s cost realism analysis, an
agency “need not [perform the analysis] with ‘impeccable rigor’ to be rational.” Westech Intern.,
Inc. v. United States, 79 Fed. Cl. 272, 286 (2007) (quoting OMV Med., Inc. v. United States, 219
F.3d 1337, 1344 (Fed. Cir. 2000)). Rather, the cost realism analysis must “reflect that the agency
considered the information available and did not make ‘irrational assumptions or critical
miscalculations.’” Id. “Unless the agency commits itself to a particular methodology in a
solicitation . . . , the nature and extent of a price realism analysis, as well as an assessment of
potential risk associated with a proposed price, are generally within the sound exercise of the
agency’s discretion.” Afghan Am. Army Servs., 90 Fed. Cl. 341, 357-58 (2009). When a method
is not specified, the agency has “broad discretion” to conduct the cost realism analysis. Ne.
Military Sales, Inc. v. United States, 100 Fed. Cl. 103, 118 (2011) (internal quotations omitted).
Because MSC “is in the best position to make this cost realism determination, [the court’s] review
is limited to determining whether its cost evaluation was reasonably based and not arbitrary.”
United Payors and United Providers Health Servs., Inc. v. United States, 55 Fed. Cl. 323, 329
(2002) (internal quotation and citation omitted).
        Finally, even if a plaintiff succeeds in establishing an error in the procurement process, a
plaintiff cannot prevail in a bid protest unless it can demonstrate that it was “significantly
prejudiced” by the agency’s error. Bannum, 404 F.3d at 1353. To do so, a protestor must show
that “there was a ‘substantial chance’ it would have received the contract award but for the errors.”
Id.; see also, Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996) (stating that a
successful protestor “must establish not only some significant error in the procurement process,
but also that there was a substantial chance it would have received the contract award but for that
error”). This requirement is of particular import given the instant facts.
       In the case at bar, plaintiff contends that flaws in MSC’s fuel cost realism analysis, the
foundation for the agency’s decision to uphold its award to Maersk, provide a sufficient basis to
overturn the agency’s award. Pl.’s Mot. at 19-38. Plaintiff’s argument raises two questions for
the court to address:
       1. Was MSC’s conclusion that Maersk’s offer accounted for the [redacted]%
       tolerance adjustment irrational?

       2. Was MSC’s evaluation of the offeror’s proposals without adjustment for
       differing assumptions irrational?

The court will address these two issues in turn.

1. MSC Did Not Err in Determining That a Tolerance Adjustment Was Unnecessary

        Plaintiff argues that MSC erred in determining that a tolerance adjustment was
unnecessary, for the following two reasons. First, plaintiff argues that Maersk had simply ignored
the required tolerance adjustment, and that MSC “had no authority to compensate for Maersk’s
calculation errors by borrowing from Maersk’s [experience factor].” Id. at 3. Second, plaintiff
argues that MSC’s determination that Maersk had accounted for the tolerance adjustment within
its experience factor was irrational and “contrary to all evidence.” Id. at 24. Pl.’s Mot. at 19-38.
Plaintiff dismisses MSC’s findings to the contrary as “post hoc calculation made during the heat
of the GAO protest litigation.” Pl.’s Mot. at 32.

        To begin with, plaintiff argues that Maersk ignored the engine manufacturer’s email
instruction to apply the tolerance adjustment to its fuel consumption estimates. Pl.’s Mot. at 22.

                                                -7-
Plaintiff contends that Maersk’s failure to comply with the first section of the original engine
manufacturer’s email pertaining to calorific conversion rates, which MSC discovered and
corrected during Crowley’s GAO protests, indicates that Maersk “ignored” the email. Id. at 21.
In plaintiff’s view, this “creates a strong presumption” that Maersk did not apply the [redacted]%
adjustment mandated in the second section of the email. Id. at 22.7

       Plaintiff also argues that the order in which Maersk applied its calculations indicates that
the experience factor was not intended to address the [redacted]% tolerance/engine-driven pump
adjustment. Pl.’s Mot. at 24-25. Plaintiff points out that tolerance adjustments are ordinarily
applied to the specific fuel oil consumption rate before reaching a total daily fuel consumption
rate. Id. Maersk, in contrast, applied its [redacted]% experience factor to the total daily fuel
consumption rate. Id. Nonetheless, plaintiff admits that “the arrangement of this calculation does
not necessarily have mathematical significance.” Id.

        In addition to its arguments that Maersk failed to make the tolerance adjustment in the first
place, plaintiff contends that MSC’s decision to consider the experience factor in satisfaction of
the tolerance adjustment is problematic in its own right. Specifically, plaintiff attempts to
demonstrate that Maersk’s [redacted]% experience markup cannot satisfy the [redacted]%
tolerance adjustment because Maersk described the experience factor as a general “business risk,”
which was not intended to address “any specific type of loss.” Pl.’s Mot. at 23. At oral argument,
plaintiff stated that the [redacted]% experience factor was “there for a reason” and that business
risk, not tolerance, was “what it was proposed for.” Tr. at 65-66. In plaintiff’s view, MSC’s
decision to “borrow” from the [redacted]% experience figure to rectify the tolerance adjustment
issue with Maersk’s bid resulted in a conclusion by MSC that was “tainted by fundamentally
irrational and unsupported assumptions.” Id. at 20, 24.

         Furthermore, plaintiff argues that the [redacted]% experience factor cannot be applied to
satisfy the [redacted]% tolerance adjustment because doing so would create deficiencies
elsewhere in the offer. Pl.’s Mot. at 26-27. Specifically, plaintiff argues that borrowing from the
[redacted]% experience factor would leave “unrealistically low” projections for sea margin. 8 Pl.’s
Mot. at 27. Maersk’s offer proposed a sea margin of [redacted]%. Tab 33a at 3173. Plaintiff
cites a paper entitled “Basics of Ship Propulsion” for the proposition that an appropriate sea margin
is 20-35%. Pl.’s Mot. at 26-27. Plaintiff contends that it “did not press this shortcoming during
its GAO protest because Crowley considered Maersk’s [redacted]% experience factor as
sufficiently, though not fully, making up the difference because it would result in a total adjustment
of [redacted]%, close to the 20-35% sea margin range.” Id. Plaintiff argues that “borrowing”
[redacted]% of the [redacted]% experience factor results in an unacceptably low sea margin of
[redacted]%. Id.

        The court disagrees with plaintiff’s objections. In the first place, plaintiff’s evidence that
Maersk failed to adhere to a section of an email from its engine manufacturer regarding fuel
conversations does not provide “strong” evidence that Maersk failed to follow instructions in a
different section of the email which pertain to a different matter. Pl.’s Mot. at 27. As the GAO
commented, Crowley “has not pointed to anything in Maersk’s proposal that indicates that the
[redacted]% experience factor did not include provision [for] tolerance.” AR tab 62 at 3973
7
  At oral argument, plaintiff clarified that the term “presumption” was intended to mean an
inference. Tr. at 76.

8 “Sea margin is a factor that takes into account resistance associated with the weather conditions.”
Pl.’s Mot. at 26.
                                                -8-
(emphasis added). “Naked claims, by all appearances unsupported by anything in the record, fall
far short of meeting the heavy burden of demonstrating that ... findings were the product of an
irrational process and hence arbitrary and capricious.” JWK Int'l Corp. v. United States, 52 Fed.
Cl. 650, 660 (2002). Each of these two arguments shares a common basis – speculation – and the
court declines to breathe life into them by engaging in more of the same.
       Similarly, the court is not persuaded by plaintiff’s order of operations argument. Plaintiff
acknowledges that “the arrangement of [Maersk’s fuel] calculation does not necessarily have
mathematical significance.” Id. But, despite this concession, plaintiff asks the court to consider a
potentially meaningless order of operations as sufficient evidence that Maersk’s experience factor
was not allotted for tolerance.
         Second, it is important to note that even if the court accepted plaintiff’s conjecture that
Maersk overlooked the tolerance adjustment, plaintiff has not demonstrated how this oversight
would provide a sufficient basis to overturn MSC’s conclusion that the [redacted]% experience
factor accounts for the [redacted]% tolerance adjustment. The closest plaintiff comes to doing so
is its position at oral argument that the experience factor was “there for a reason” and that business
risk was “what it was proposed for.” Tr. at 65-66. Nowhere, outside of its sea margin argument,
does plaintiff establish that MSC’s decision to “borrow” from the [redacted]% experience factor
represents an irrational determination sufficient to overturn the agency’s cost realism analysis.
Pl.’s Mot. at 20, 24.

        Crowley’s best attempt to show that MSC’s finding on this question was irrational is its
argument that such a conclusion creates inconsistencies in other portions of Maersk’s bid. As
discussed above, Crowley argues that [redacted]% sea margin is “unrealistically low,” citing a
paper for the proposition that 20-25% is an appropriate sea margin. Pl.’s Mot. at 27. Crowley
contends that Maersk’s [redacted]% experience factor must be allotted to Maersk’s sea margin in
order to bring it to acceptable levels. Id. But, Crowley’s views aside, MSC’s fuel cost realism
analysis accepted Maersk’s [redacted]% sea margin. AR at 3173; AR tab 34 at 3224. Crowley
has not provided any evidence of “irrational assumptions or critical miscalculations” by the FCET
sufficient to overturn this determination. OMV Med., 219 F.3d at 1344.

        Interestingly, even as plaintiff criticizes the agency for “borrowing” from Maersk’s
experience factor to account for the tolerance requirement, plaintiff concedes that it initially did
not press plaintiff’s alleged use of an “unrealistically low” sea margin because “Crowley
considered Maersk’s [redacted]% experience factor as sufficiently, though not fully, making up
the difference.” Pl.’s Mot. at 26-27. Plaintiff, in effect, appears to argue that “borrowing” from
the experience factor to account for sea margin is rational, but that “borrowing” from the
experience factor to account for the tolerance adjustment is irrational and arbitrary and capricious.
Plaintiff makes no attempt to resolve this inconsistency.

        As explained above, the role of the court is not to second guess the judgment of the agency
but to determine whether the agency acted arbitrarily or capriciously. Weeks Marine, 575 F.3d at
1358. The court finds that the administrative record in this case does not demonstrate that MSC
made “irrational assumptions or critical miscalculations” sufficient to undermine its determination
that Maersk’s offer accounted for the [redacted]% tolerance adjustment. OMV Med, 219 F.3d at
1344. Instead, the record supports defendant’s view that MSC’s conclusion was reached through
a “rigorous, thorough and well-documented” process. Def.’s Resp. at 34 (citing AR tab 34 at 3222-
32). The FCET, comprised of experts including naval engineers and architects, reviewed extensive
data offerors submitted to the agency explaining their bids and employed their combined expertise
to determine that no further tolerance adjustment was necessary. AR at 2754.

                                                -9-
        Plaintiff has not presented any evidence that the FCET failed to consider available
information or any evidence of procedural errors in the FCET’s process that would demonstrate
the agency’s finding in this case was irrational. In lieu of doing so, plaintiff attacks the FCET
finding as a “post hoc calculation.” Pl.’s Mot. at 32. But, this comment alone is not enough to
overcome the “strong presumption that government contract officials exercise their duties in good
faith.” Am-Pro Protective Agency, Inc., 281 F.3d at 1239; See also, Rd. and Highway Builders,
LLC v. United States, 702 F.3d 1365, 1368 (Fed. Cir. 2012) (stating that this court has “long upheld
the principle that government officials are presumed to discharge their duties in good faith.”).

        In sum, plaintiff has not established that MSC erred in finding that a tolerance adjustment
was unnecessary. Plaintiff has not identified “irrational assumptions or critical miscalculations”
in the agency’s cost realism analysis. OMV Med., 219 F.3d at 1344. Nor has plaintiff demonstrated
that the agency’s conclusion was irrational on the ground that it creates inconsistencies in other
aspects of Maersk’s bid. Accordingly, the court finds that plaintiff has failed to demonstrate that
MSC lacked a “coherent and reasonable explanation” for its decision that a tolerance adjustment
was unnecessary. Banknote, 365 F.3d at 1350.

2. Crowley Cannot Demonstrate It Was Prejudiced by Passenger Assumptions

        Plaintiff argues that MSC’s fuel cost realism analysis errantly failed to consider that
offerors made differing assumptions about passenger loads, which affected the fuel cost
projections in their bids. Pl.’s Mot. at 27-38. In light of MSC’s statutory mandate to consider
fuel costs, plaintiff contends that MSC was “required to equalize [for] . . . the presence of
passengers” amongst the bids. According to plaintiff, MSC’s “failure to do so was arbitrary,
capricious, and contrary to law.” Id. at 31 (citing 10 U.S.C. § 2305(a)(3)(A)(ii); FAR
15.304(c)(1)). In plaintiff’s view, “comparing two dissimilar costs,” here fuel costs for a ship
with passengers and a ship without, does “not result in a rational or meaningful consideration of
cost to the government.” Id. at 28.

        At the outset, the court notes that even if the agency’s failure to account for differing
passenger assumptions was in error, this failure is only material if plaintiff can establish that it was
“significantly prejudiced” by this failure. Bannum, 404 F.3d at 1353. As the court explained
above, plaintiff must be able to show that but for this error, there is a “substantial chance” that it
would have been awarded the contract instead of Maersk. Id. The court has already upheld the
agency’s determination that no tolerance adjustment is necessary. Moreover, as explained above,
the solicitation stated that offers would be evaluated on a lowest priced technically acceptable
offer. Therefore, plaintiff cannot prevail unless it can show that but for the agency’s failure to
“normalize” the passenger assumptions of the bids, Crowley’s offer price would have been lower
than Maersk’s offer.

        During MSC’s source selection, the agency determined that Maersk’s total evaluated price
of $163,777,124.60 was $[redacted] lower than Crowley’s price. AR tab 35 at 3256. After
correcting for the errors in Maersk’s proposal9 that MSC identified post source selection, Maersk’s
total most probable price is $165,061,504.29, which is still $[redacted] lower than Crowley’s total
probable price of $[redacted].10

9
 MSC determined that these errors understated Maersk’s costs by $126,287.11 and $1,158,092.58,
respectively. AR at 3627.
10
  The court does not consider Crowley’s alleged concession at GAO that Maersk’s price should
be lowered by an additional $386,960. The similarity between Maersk’s “loiter/anchor”
                                                 - 10 -
        The remaining price difference is notable because the FCET determined that, if an
adjustment were made to account for the difference in passenger assumptions, it should be based
on a reduction to the projected power consumption of 113 kilowatts, which would cut Crowley’s
projected fuel costs by only $1,103,469. AR at 3626-27. Although such an adjustment would
narrow the price gap between Maersk and Crowley, Maersk would still retain its status as the
lowest priced technically acceptable offeror by a margin of roughly $[redacted].

        Predictably, plaintiff takes issue with MSC’s 113 kilowatt estimate of the impact of
Crowley’s passenger load assumption. Pl.’s Mot. at 32. As discussed, plaintiff dubs the FCET
chairperson’s declaration quantifying the passenger load impact a “post hoc calculation made
during the heat of the GAO protest litigation.” Pl.’s Mot. at 32. Plaintiff argues that “it was
unreasonable for MSC to select 113 kW as the ‘realistic’ amount of power associated with
passengers, because the conclusion was not rational, failed to consider the entirety of Crowley’s
clarifications, and was counter to the evidence before the agency.” Id. Plaintiff attempts to
demonstrate that the FCET’s impact estimate was arbitrary in several ways.

        First and foremost, plaintiff argues that MSC failed to consider all three of the methods for
calculating passenger impact that Crowley submitted to the FCET during MSC’s cost realism
analysis. Pl.’s Mot. at 32. In plaintiff’s view, MSC’s decision to employ methods A and B to
arrive at the 113kW figure for passenger impact was errant because it did not sufficiently consider
the 250kW estimated passenger impact provided by method C. Id. Plaintiff argues that MSC’s
decision to consider certain methodologies over others resulted in a conclusion that was “arbitrary
and incomplete.” Id. at 33.

        Furthermore, plaintiff argues that MSC’s estimated impact “creates an irrational and
unsustainable result.” Pl.’s Mot. at 33. Plaintiff points out that method A projects an electrical
load for hotel services at 290.1kW. Id. Plaintiff notes that if only 113kW of power is allocated to
passengers, “the remaining load of 177.1kw would be attributable to [30] crew.” Id. Plaintiff
maintains that “MSC’s conclusion was necessarily irrational because the agency’s analysis would
mean that significantly fewer cabins and personnel (crew) would consume more electricity than
the 285 passengers, who number almost 10 times the number of crew, and whose cabins number
more than three times the number of crew cabins.” Id.

        Additionally, plaintiff argues that MSC’s electrical load impact estimation was flawed
because it was based, in part, on an average electrical load figure of 613kW, derived from method
B. Pl.’s Mot. at 34-37. In plaintiff’s view, the 613kW average “does not provide the most accurate
estimation of the total electrical load” because the average includes voyages with a lower number
of passengers, which had an electrical load of roughly 500kW. Id. Plaintiff maintains that the
inclusion of voyages with lighter passenger loads artificially depressed the average electrical load
figure and undermines the reliability of methods A and B. Id.

        Plaintiff also attempts to rebut defendant’s argument that Crowley “relied on” method A
to calculate the projected fuel costs for its original bid. Pl.’s Mot. at 36. Plaintiff comments that
the purpose of the methods was “not to demonstrate a precise and realistic estimate of the total
power/fuel cost associated with 285 passengers, but to demonstrate that Crowley’s proposed total
figure . . . was realistic.” Id. Plaintiff contends that “[t]he FCET Chair’s declaration provided no
explanation or rationale why this fact had any relevance.” Id.


assumptions and Crowley’s passenger load is irrelevant because Crowley cannot demonstrate
prejudice even without a reduction in Maersk’s price. Def.’s Res. at 40-14.
                                               - 11 -
         As outlined, this court reviews MSC’s cost realism analysis for “irrational assumptions or
critical miscalculations.” OMV Med, 219 F.3d at 1344. The court must determine whether MSC’s
decision on this question “lacked a rational basis” and whether Crowley can demonstrate that MSC
failed to provide a “coherent and reasonable explanation of its exercise of discretion.” Weeks
Marine, 575 F.3d at 1358; Banknote, 365 F.3d at 1350.

        The court turns once more to the declaration of FCET chairperson Bradley, in which she
articulated two reasons for her decision to consider the 113kW figure derived from Crowley’s
methods A and B over the 250kW figure provided by method C. AR at 3626-27. Ms. Bradley
stated that method C is less reliable because “MSC considers actual operational data” provided by
methods A and B to be “more representative.” AR at 3627. She also stated that MSC disfavored
method C because it “was never used in the calculation of Crowley’s proposed fuel consumption.”
Id. The court finds that MSC’s preference for data gleaned from actual ship operations over more
theoretical data provides a “rational basis” for the agency’s decision. Weeks Marine, 575 F.3d at
1358. Ms. Bradley’s declaration unequivocally stated a “coherent and reasonable explanation” for
MSC’s decision to favor certain methods A and B over method C. Banknote, 365 F.3d at 1350.

        Likewise, the court is not persuaded by plaintiff’s arguments attacking the fuel calculation
methods the FCET considered, which Crowley itself supplied to the agency. As noted, the FCET
was composed of technical experts assembled by the agency in order to assess cost realism as
accurately as possible. AR at 3217, 3585. This court will abide by the admonition that it “is not
to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n, 463 U.S. 29, 30
(1983).

        The court also rejects plaintiff’s characterization of Ms. Bradley’s statement as a “post hoc
calculation made during the heat of the GAO protest litigation.” Pl.’s Mot. at 32. The court will
not impute bad faith onto the FCET purely based on the context of prolonged protest litigation.
As defendant notes, there is a “strong presumption that government contract officials exercise their
duties in good faith.” Am-Pro Protective Agency, Inc., 281 F.3d at 1239. This strong presumption
cannot be overcome by mere implication.

        Plaintiff‘s inability to supplant the FCET’s passenger load impact determination is
ultimately fatal to its case. For the reasons explained above, the court will not disturb MSC’s
quantification of the impact of Crowley’s passenger assumption nor will it upset the agency’s
determination that no tolerance adjustment is necessary. Therefore, plaintiff cannot demonstrate
that it was significantly prejudiced because a downward adjustment of Crowley’s price by
$1,103,469 is not sufficient to trump Maersk’s status as the lowest priced technically acceptable
offeror. Moreover, as explained above, even if the court were to make such an adjustment,
Crowley’s total probable price would continue to exceed Maersk’s by $[redacted]. Accordingly,
the court rejects plaintiff’s passenger assumption argument for failure to demonstrate prejudice,
without reaching the question of whether MSC’s decision not to make such an adjustment was in
error.

B. Plaintiff’s Motion for Permanent Injunctive Relief

        In its motion, plaintiff petitions the court to “order MSC to suspend the contract awarded
to Maersk, conduct a rational fuel cost realism analysis and make necessary adjustments as
specified in this protest, and award the contract to Crowley as the LPTA offeror.” Pl.’s Mot. at
39. Given the court’s findings on the merits of this case, plaintiff’s request for injunctive relief
must be denied. See PGBA, LLC v. United States, 389 F.3d 1219, 1229 (Fed. Cir. 2004) (noting
that a plaintiff “must” succeed on the merits before the court may grant a permanent

                                               - 12 -
injunction); Assessment and Training Solutions Consulting Corp. v. United States, 92 Fed. Cl. 722,
737 (2010) (declining to grant a permanent injunction “because plaintiff has not succeeded on the
merits of this case”). In any event, even if plaintiff were successful on the merits, the court would
deny injunctive relief on the ground that any irreparable harm that plaintiff might suffer from the
denial of injunctive relief is greatly outweighed by the national security concerns raised by
defendant.

        As a general matter, the court notes that an “injunction is a matter of equitable discretion;
it does not follow from success on the merits as a matter of course.” Winter v. Nat’l Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). This principle is equally applicable in the bid protest context.
See, e.g., PGBA, LLC v. United States, 389 F.3d at 1228-1229 (holding that “section 1491(b)(4) .
. . does not deprive a court of its equitable discretion in deciding whether injunctive relief is
appropriate . . . and does not automatically require a court to set aside an arbitrary, capricious, or
otherwise unlawful contract award.”).

         In deciding whether permanent injunctive relief is appropriate, the court must consider
whether “(1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm
if the court withholds injunctive relief, (3) the balance of hardships to the respective parties favors
the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.”
Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). No single factor is
dispositive, and “the absence of an adequate showing with regard to any one factor may be
sufficient, given the weight or lack of it assigned the other factors, to justify the denial” of
injunctive relief. FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993); see Amoco Prod.
Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546 n.12 (1987) (explaining that the “standard for a
preliminary injunction is essentially the same as for a permanent injunction with the exception that
the plaintiff must show a likelihood of success on the merits rather than actual success”).

        This balancing method is rooted in “equity practice with a background of several hundred
years of history.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Characterized by “[f]lexibility
rather than rigidity,” a balancing approach allows for “adjustment and reconciliation between the
public interest and private needs.” Id. In balancing these competing interests, the court must
“weigh each harm or benefit based upon both its magnitude and likelihood of occurrence.” Linc
Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 701 (2010). This balancing approach calls to
mind Judge Learned Hand’s familiar formula for determining negligence liability. See United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2nd Cir. 1947).

        In Carroll Towing, Judge Hand posited that a barge owner’s duty to ensure their vessel
remains properly moored “is a function of three variables: (1) The probability that [the barge] will
break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate
precautions.” Id. In algebraic terms, “if the probability be called P; the injury, L; and the burden,
B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.”
Id. Fundamentally, this calculation provides that the more grievous a potential injury or imminent
in occurrence the harm, the lower a corresponding showing of probability or harm may be, thus
the term sliding scale. “Consistent with equity's character, courts do not insist that litigants
uniformly show a particular, predetermined quantum of probable success or injury before awarding
equitable relief.” Winter, 129 S.Ct. at 392. Rather, the court must balance all four factors,
weighing each against the others. Procter & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d
842, 847 (Fed. Cir. 2008); Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350
(Fed. Cir. 2001).



                                                - 13 -
        Even when a plaintiff prevails on the merits, “a court must balance the potential harm to
the plaintiff of not granting the injunction against the potential harm to both the Government and
the awardee should the injunction be granted.” Gentex Corp. v. United States, 58 Fed. Cl. 634,
654 (2003). The courts are “particularly cautious when contemplating relief that implicates public
interests.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010); see Weinberger v. Romero–
Barcelo, 456 U.S. 305, 312 (1982) (directing courts to “pay particular regard for the public
consequences in employing the extraordinary remedy of injunction”); Amoco Prod. Co., 480 U.S.
531 at 545 (noting the “important role of the ‘public interest’ in the exercise of equitable
discretion”). Moreover, the Tucker Act specifically directs the court to “give due regard to the
interests of national defense and national security” in bid protest cases. 28 U.S.C. § 1491(b)(3).

        Admittedly, merely conclusory assertions of national security do not suffice to defeat
motions for injunctive relief. See, e.g., Gentex Corp., 58 Fed. Cl. at 655 (explaining that the court
must not “blindly accede” to assertions of national security) (quoting Harris Corp. v. United States,
628 F. Supp. 813, 822 n. 13 (D.D.C. 1986)). Nonetheless, in evaluating assertions of national
security, the court is extremely deferential and applies a sliding scale approach akin to the one
used by Learned Hand in Carroll Towing—since national security concerns raise the possibility
of serious harm, the court will require less evidence from the government to defeat a motion
seeking injunctive relief. See, e.g., Linc Gov't Servs, 96 Fed. Cl. at 702-03 (noting that when
interests raise national security concerns they “place the weight of both the public interest and
balance of the hardships firmly on defendant’s side of the scale.”); see also Gentex Corp., 58 Fed.
Cl. at 656 (noting that military and security interests create an “inflated” importance on the public
interest factor when balancing the equities); Al Ghanim Combined Grp. Co. Gen. Trad. & Cont.
W.L.L. v. United States, 56 Fed. Cl. 502, 521 (2003) (the public interest in national defense and
national security is of “inflated importance”); Cincom Sys. Inc. v. United States, 37 Fed. Cl. 266,
269 (1997) (“Given the importance of military preparedness to the national defense, the balance
of harms tips in defendant's favor.”).

        As explained above, government officials are already entitled to “a strong presumption of
regularity and good faith.” Linc Gov’t Serv., 96 Fed. Cl. at 720; see also Am–Pro Protective
Agency, Inc., 281 F.3d at 1236, 1238–39 (stating that the court is “loath to find to the contrary [of
good faith]”) (citations omitted). But in addition to the deference that courts ordinarily accord to
agencies in bid protests, an additional level of deference comes into play when the court considers
an assertion of national security by a military or government official. See, e.g., Winter, 129 S. Ct.
at 377 (underscoring the “great deference” that courts owe “to the professional judgment of
military authorities concerning the relative importance of a particular military interest”); North
Dakota v. United States, 495 U.S. 423, 443 (1990) (“When the Court is confronted with questions
relating to . . . military operations, we properly defer to the judgment of those who must lead our
Armed Forces in battle.”).

        Accordingly, the court accedes to the professional judgment of military officials unless the
government’s assertion is entirely without basis or “completely without foundation.” Gentex
Corp., 58 Fed. Cl. at 655-56; see also Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173, 230
(2006) (deferring to the government’s declaration on the ground that “the Army’s posture is not
unreasonable”); c.f. PGBA, LLC v. United States, 57 Fed. Cl. 655, 661 (2003) (disregarding the
government’s declaration on the ground that it was “so implausible as not to be the product of
rational decisionmaking”); GTA Containers, Inc. v. United States, 103 Fed. Cl. 471, 494 (2012)
(discounting the agency’s assertion of national security on the ground that the agency’s decision
to proceed with the contract was driven by a desire to satisfy its Small Business Act procurement
goals rather than genuine national security concerns).


                                               - 14 -
        Defendant presents compelling evidence of a strong public interest in national security in
the form of a declaration from Major General W. Lee Miller, Chief of Staff of the United States
Special Operations Command (“USSOCOM”). Dkt. No. 27 Attach. A. The USSOCOM, one of
nine Unified Combatant Commands, has a mission to “provide trained, equipped, ready, and
regionally aligned special operations forces . . . and through unified action, conduct sustained
special operations to eliminate threats to U.S. interests and protect the American people.”11
USSOCOM’s operations range “from peacetime engagement and building partner capacity, to
direct action raids and irregular warfare” and “have contributed significantly to not only our own
National Security, but global stability at large.” Id. The USSOCOM accomplishes its mission
through “synchronizing the planning of global operations against terrorist networks.” Dec. of
General W. Lee Miller at ¶1.

       Major General Miller has served with distinction in the United States Navy for thirty five
      12
years. In recognition of that service to our country, General Miller has been honored with the
Defense Superior Service Medal, Legion of Merit with Gold Star, Bronze Star with “V,” Defense
Meritorious Service Medal, Meritorious Service Medal with Gold Star, Navy Commendation
Medal with Gold Star, and the Navy Achievement Medal. Id.

        In his declaration, General Miller underscores the impact a permanent injunction would
have on national security, stating that the vessel at issue is “urgently needed and has already
experienced an unexpected lengthy delay due to protest actions, resulting in cumulative negative
effects on the Government’s ability to execute current mission requirements.” Dec. of General W.
Lee Miller ¶3. General Miller states that “[a]ny delay will have a significant and negative impact
on National Defense by depriving USSOCOM of access to a vital asset necessary to perform
classified missions.” Id.

        General Miller also notes that, although the mission requirement is currently being fulfilled
by a third party vessel, that vessel’s future availability is in question. Dec. of General W. Lee
Miller ¶6. If the third party vessel is unavailable, it is possible General Miller’s forces will have
no access to a MSV, suffering “a complete gap in asset coverage.” Id. General Miller states that
such an outcome would “significantly impact . . . [his] force’s ability to conduct their mission.”
Id. General Miller goes on to state that the current third party vessel “no longer supports the full
range of special operations requirements.” Id. at ¶4. According to General Miller, the enhanced
vessel will “provide an exponential leap in capability to address current vessel shortfalls” and the
vessel’s improvements “are critical factors towards achieving mission success.” Id.

        The court notes that a degree of uncertainty is inevitable here, as some of the contingencies
described by General Miller depend on the actions of third parties beyond the government’s
control. In this case, General Miller avers that the future availability of a third party vessel, which
is currently providing essential support for USSOCOM operations, is uncertain. Nonetheless, the
Leonard Hand formula described above provides a method of weighing the nature of the harm to
the public. Even if the probability that the third party vessel will become unavailable in the interim
is slight, the court finds that the gravity of the potential harm to the nation’s Armed Forces that
would be caused by the unavailability of a MSV is great, and outweighs any competitive harm that

 Admiral William McRaven, US Navy, Posture Statements to the House, Armed Services
11

Committee, Hearing March 6, 2013, Available at:
http://www.socom.mil/Documents/2014%20USSOCOM%20POSTURE%20STATEMENT.PDF.

12
  A summary of Major General Miller’s service can be found online at:
http://www.isaf.nato.int/about-isaf/leadership/major-general-walter-lee-miller-jr.html.
                                                - 15 -
plaintiff will experience in the absence of an injunction. In any event, aside from the possibility
that the third party vessel may no longer be available in the future, General Miller also states that
delays due to protest actions are already negatively affecting “the Government’s ability to execute
current mission requirements,” and that any further delay “will have a significant and negative
impact.” Dec. of General W. Lee Miller ¶3.

        Plaintiff contends that General Miller’s statements are “vague” or “conclusory.” Tr. at 18.
But, any lack of detail is somewhat expected given the classified nature of USSOCOM’s
operations. The court is unwilling to disregard General Miller’s declaration because the sensitive
nature of USSOCOM’s operations prevent elaboration. In light of the gravity of the national
security interest, the court requires less evidence from the government to defeat a motion seeking
injunctive relief.

        Finally, General Miller’s evaluation of his forces’ need for the vessel is an example of
precisely the “complex, subtle, and professional decisions” that are “essentially professional
military judgments.” Winter, 129 S. Ct. at 377 (quoting Gilligan v. Morgan, 413 U.S. 1 (1973)).
Plaintiff has not presented any evidence calling into question the good faith or expertise of General
Miller. See Avtel Servs., Inc., 70 Fed. Cl. at 230. The court finds that under the heightened standard
of deference described above, General Miller’s stated concerns are neither manifestly
unreasonable nor “completely without foundation.” Gentex Corp., 58 Fed. Cl. at 655-56; see Avtel
Servs., Inc., 70 Fed. Cl. at 230. In light of the deference due to professional military judgments,
the court is unwilling to second guess General Miller’s assessment of the government’s national
security concern.

        The court concluded above that plaintiff has not demonstrated success on the merits. Given
the urgent need for the vessel and the gravity of the harm that would result from a complete gap
of asset coverage, the court further concludes that the relative harm to the public interest and to
the government from an injunction outweighs any harm to plaintiff.

                                      III. CONCLUSION
        For the reasons set forth above, plaintiff’s MOTIONS for permanent injunctive relief and
judgment on the administrative record pursuant to RCFC 65 and 52(c), respectively, are DENIED.
Defendant and defendant-intervenor’s CROSS-MOTIONS for judgment on the administrative
record, pursuant to RCFC 52(c) are GRANTED. The Clerk is hereby directed to take the necessary
steps to dismiss this matter.

       IT IS SO ORDERED.

                                                         s   /Lawrence J. Block
                                                         Lawrence J. Block
                                                         Judge




                                                - 16 -
