     In the United States Court of Federal Claims
                                No. 13-689C
                    (Originally Filed: October 29, 2013)
                       (Reissued: November 5, 2013)*


**********************

DYNCORP INTERNATIONAL LLC,

                     Plaintiff,
      and

KELLOGG, BROWN & ROOT
SERVICES, INC.

                     Plaintiff-Intervenor,
                                             Bid Protest; CICA stay override;
v.                                           31 U.S.C. § 3553.

THE UNITED STATES,

                     Defendant,
      and

PAE GOVERNMENT SERVICES, INC.

                    Defendant-Intervenor.

**********************

       Richard Paul Rector, Washington, DC, and Seamus Curley,
Washington, DC, argued for plaintiff. Jason Andrew Carey, Washington, DC,
for plaintiff-intervenor.

     Elizabeth Anne Speck, Civil Division, Department of Justice,
Washington, DC, with whom are Stuart F. Delery, Assistant Attorney General,


       *
         This opinion was originally filed under seal. Publication was deferred
pending the parties’ review for redactions of protected material. The parties
did not identify any material that needed to be redacted. This opinion is now
prepared for release.
Bryant G. Snee, Acting Director, and Patricia M. McCarthy, Assistant
Director, for defendant. Robert Stephen Nichols, Washington DC, and Anuj
Vohra, Washington, DC, argued for defendant-intervenor.

                                  _________

                                  OPINION
                                  _________


BRUGGINK, Judge.

        This is an action challenging a Competition in Contracting Act
(“CICA”), 31 U.S.C. § 3553 (2006), override decision by the Department of
State (“DOS”). Currently before the court are plaintiff’s motion to supplement
the administrative record, plaintiff and plaintiff-intervenor’s joint motion for
reconsideration of our denial of plaintiff’s motion for a preliminary injunction,
and the parties’ cross-motions for judgment on the administrative record. The
motions are fully briefed, and we heard oral argument on October 23, 2013.
As we notified the parties at the conclusion of oral argument, and for the
reasons more fully explained below, we deny plaintiff and plaintiff-
intervenor’s joint motion for reconsideration, grant in part and deny in part
plaintiff’s motion to supplement the administrative record, grant defendant’s




                                       2
and defendant-intervenor’s1 motions for judgment on the administrative
record, and deny plaintiff’s and plaintiff-intervenor’s cross-motions.

                               BACKGROUND

       Plaintiff, Dyncorp International LLC (“Dyncorp”), was one of the
companies that bid on solicitation number SAQMMA-12-R-0130 to provide
Baghdad Life Support Services (“BLiSS”) to the Department of State. The
services covered by the contract include, among other things, food
procurement, food service, fuel, fire and first responder services, aircraft
operations, security systems operation and maintenance, waste management,
and sensitive equipment demilitarization. The BLiSS contract replaces at least
five contracts, all performed in Iraq, and several inter-agency agreements.
These contracts include:




       1
           Defendant and defendant-intervenor objected to the motion to
intervene as a plaintiff filed by Kellogg, Brown & Root (“KBR”), an
unsuccessful offeror to the BLiSS procurement, on the ground that KBR’s
protest at the Government Accountability Office (“GAO”) was not filed in
time to trigger an automatic stay. See 31 U.S.C. § 3553(d) (stating that the stay
is automatically triggered when a protest is filed at GAO and notice is given
to the agency on or before “the date that is 10 days after the date of contact
award”). KBR filed its protest and DOS was notified of KBR’s protest on
Monday, September 9, 2013, which was the eleventh calendar day following
contract award. In Unisys Corp. v. United States, this court previously held
that an “agency only has a duty to suspend performance under § 3553 if it
receives notice from GAO within ten calendar days of contract award.” 90
Fed. Cl. 510, 518 (2009). However, neither the current CICA stay provision
nor its implementing regulations employ the term “calendar days.” See 31
U.S.C. § 3553(d); 48 C.F.R. § 33.104 (2013). Rather, 31 U.S.C. § 3555(b)
provides that, “in computation of any period described in this subchapter . . .
(2) the last day after such act, event, or default be included, unless – (A) such
last day is a Saturday, a Sunday, or a legal holiday.” September 9, 2013, was
therefore the tenth day for purposes of section 3553(d) and the resultant CICA
stay. KBR is thus an interested party in this action.

                                       3
 Agency            Incumbent      Expiration2    Description
 United States     KBR            12/31/2013     Food services, air support
 Army                             or with        services, fire department
                                  extension:     services, badging services,
                                  6/30/2014      and waste management
 Defense           Anham          2015           Food acquisition and
 Logistics                                       logistics through Kuwait
 Agency
 (“DLA”)
 DLA               Ram Dis        12/31/2013     Fuel acquisition and
                   Ticaret A.S.   or with        logistics; procurement and
                                  extension:     delivery of gasoline and
                                  6/30/2014      diesel fuel from Turkey


 Army              URS            12/31/2013 Maintenance services for
 Sustainment       Corporation    or with    biometric and security
 Command                          extension: equipment
                                  3/31/2014
 DOS               Olgoonik,      11/15/2013     Fuel procurement and
                   Inc.           with option    delivery from the
                                  to extend:     Government of Iraq to
                                  8/13/2014      Basrah

In addition to these services, the BLiSS contract will also cover certain
additional tasks, such as the demilitarization of sensitive and classified
equipment for disposal – currently performed by DLA.

        The purpose of the BLiSS contract is to streamline provision of these
essential services by combining them under one contract as the mission in Iraq
transitions from one of military action controlled by the Department of
Defense to one of diplomatic activity facilitated by DOS. The BLiSS contract,
with option years, is valued at $1 billion. DOS awarded the BLiSS contract



       2
        The extensions to the KBR, Ram Dis Ticaret A.S., and URS
Corporation contracts would be made pursuant to 48 C.F.R. § 52.217-8.

                                      4
to PAE Government Services (“PAE”) on July 2, 2013. Administrative
Record (“AR”) at 4.

       Dyncorp and two other unsuccessful offerors protested the July 2 award
at GAO. A CICA stay was implemented barring PAE’s performance during
the pendency of the protest at GAO. DOS overrode the stay, explaining its
reasons in a Determination and Findings dated July 19, 2013. Dyncorp filed
suit here challenging the agency’s override decision. Shortly thereafter, the
agency voluntarily implemented a stop-work order and took corrective action
to consider the GAO protests. Dyncorp voluntarily dismissed the protest
before this court. See Dyncorp Int’l LLC v. United States, No. 13-539 (Fed.
Cl. Aug. 6, 2013) (motion to voluntarily dismiss).

       After reevaluating the award, on August 29, 2013, the agency once
again awarded the contract to PAE. AR 4. On September 3, 2013, plaintiff
filed a protest at GAO challenging DOS’s second decision to award the
contract to PAE, again triggering an automatic CICA stay of performance. At
that time it was anticipated that plaintiff’s protest at the GAO would be
resolved by December 9, 2013.3

       On September 9, 2013, DOS once more overrode the CICA stay based
on a new Determination and Findings (“D&F”). AR 1-15. The D&F sets out
the agency’s justification for its override decision pursuant to 31 U.S.C. §
3553(d)(3)(C), which provides that the agency may override the automatic stay
“upon a written finding that – (I) performance of the contract is in the best
interests of the United States; or (II) urgent and compelling circumstances that
significantly affect interests of the United States will not permit waiting for the
decision of the Comptroller General concerning the protest.” The agency
explained in the D&F that “it is still in the best interests of the Government to
proceed with performance . . . . [g]iven that continuity of services is critical to
[] DOS mission success and the health and safety of personnel and the
alternative of executing multiple bridge contracts are [sic] far more expensive



       3
         A lapse in appropriations caused GAO to shut down for roughly two
weeks in October. Consequently, there is now some uncertainty about whether
GAO will issue a decision by that date. If the sixteen days of shut down are
added to the December 9 date, the decision would be issued before the end of
the year.

                                        5
and less efficient.” AR 13. Once the stay was lifted, PAE was permitted to
resume transition activities.

      In its complaint, plaintiff protests DOS’s decision to override the stay.
We denied plaintiff’s motion for a preliminary injunction on September 27,
2013. In its current motion for summary judgment, it seeks a declaration that
the D&F was arbitrary and capricious as well as a permanent injunction to halt
PAE’s performance while GAO considers plaintiff’s protest.

                                DISCUSSION

        We have jurisdiction under the Tucker Act, 28 U.S.C. § 1491(b) (2006),
to review an agency decision to override a CICA stay. Ramcor Servs. Grp.,
Inc. v. United States, 185 F.3d 1286, 1289-90 (Fed. Cir. 1999). When
evaluating cross-motions for judgment on the administrative record pursuant
to the Rules of the Court of Federal Claims (“RCFC”) rule 52.1(c), “the court
asks whether, given all the disputed and undisputed facts, a party has met its
burden of proof based on the evidence in the record.” Pmtech, Inc. v. United
States, 95 Fed. Cl. 330, 340 (2010) (citing Bannum, Inc. v. United States, 404
F.3d 1346, 1356-57 (Fed. Cir. 2005)).

       The test4 for evaluating the merits of an agency’s override decision is
whether the agency’s determination was arbitrary, capricious, or otherwise not
in accordance with law. 5 U.S.C. § 706 (2012); 28 U.S.C. §1491(b)(4) (2006);
see also Pmtech, 95 Fed. Cl. at 341-44; Planetspace, Inc. v. United States, 86
Fed. Cl. 566, 567 (2009) (reviewing an agency override decision by applying



       4
         Plaintiff urges us to apply the factors adopted in Reilly’s Wholesale
Produce v. United States, 73 Fed. Cl. 705, 711 (2006), to assess the merits of
the agency’s decision. In particular, plaintiff urges us to apply an inquiry into
whether the D&F demonstrates that “significant adverse consequences will
necessarily occur if the stay is not overridden.” Id. We decline to apply that
test. We believe it overstates what is required by the arbitrary and capricious
standard particularly in the context of a “best interest” justification. We note
that the agency in Reilly’s relied on an “urgent and compelling” rationale. As
to the other factors, we believe that their application here would not lead to a
different result. See Dyncorp Int’l LLC v. United States, No. 13-689 (Fed. Cl.
Sept. 27, 2013) (order).

                                       6
Administrative Procedures Act standards). An override decision would be
arbitrary or capricious if the agency:

       relied on factors which Congress has not intended it to consider,
       entirely failed to consider an important aspect of the problem,
       offered an explanation for its decision that runs counter to the
       evidence before the agency, or is so implausible that it could not
       be ascribed to a difference in view or the product of agency
       expertise.

Motor Vehicle Mfr. Ass’n of U.S., Inc. v. State Farm Mutual Auto. Ins. Co.,
463 U.S. 29, 43 (1983). Our task “is to determine whether the contracting
agency provided a coherent and reasonable explanation of its exercise of
discretion.” Impresa Construzioni Geom. Domenico Garufi v. United States,
238 F.3d 1324, 1333 (Fed. Cir. 2001) (quotation and citation omitted).

I.     Content of the Administrative Record

        Our review is typically confined to the content of the administrative
record furnished by the agency to document its decision. The Record filed
here consists of the September 9, 2013 D&F, the BLiSS Request for Proposals,
the July 2, 2013 award document, two of Dyncorp’s filings at GAO, and
KBR’s September 9, 2013 filing initiating its protest at GAO. Plaintiff has
sought to supplement the Administrative Record with a number of documents:
the affidavits of Michael Mayo, a Principal Program Manager at KBR, along
with attachments to those affidavits; an affidavit from Alan Boege, a Task
Order Contract Administrator at KBR; the July 30, 2013 Determination and
Findings authored by DOS; an ordering guide from the Army Sustainment
Command - First contract with URS Corporation; a press release issued by
Anham, the contractor currently providing food acquisition pursuant to a
contract with DLA; an amendment to the DLA contract with Ram Dis Ticaret
A.S.; Dyncorp’s August 30, 2013 written debriefing; and correspondence and
filings from the current protest before GAO. Plaintiff argues that these
documents are necessary for effective judicial review and are appropriate for
inclusion in the Record because most of the documents predate the current stay
override decision and were included in Dyncorp’s first stay override protest,
which placed the documents before the agency.

      Defendant asserts that it has included everything in the Administrative
Record that is necessary for effective judicial review, citing Axiom Resource

                                       7
Management, Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)
(holding that the trial court abused its discretion by adding plaintiff’s
documents to the administrative record without evaluating whether the record
before the agency was sufficient to permit meaningful judicial review). While
Axiom may set the standard for supplementing the administrative record, the
rules of our court establish the type of “core documents” that the government
was “required to identify and provide” or “make available for inspection.”
RCFC App’x C 21-22. These core documents include, when relevant and
appropriate, pre-award or post-award debriefing, “documents relating to any
stay, suspension, or termination of award or performance pending resolution
of the bid protest,” determination and findings prepared for the procurement,
and “the record of any previous administrative or judicial proceedings relating
to the procurement, including the record of any other protest of the
procurement.” RCFC App’x C 22(r), (s), (t), (u).

       Some of the documents that plaintiff has put before us can be
categorized as “core documents.” The original D&F authored by DOS, the
written debriefing provided to Dyncorp on August 30, 2013, and the
correspondence and filings from the current protest before GAO all
presumptively qualify for inclusion in the Administrative Record under
appendix C of the court’s rules. We include them within the Administrative
Record.

        The balance of the materials plaintiff seeks to introduce are neither core
documents nor, given the limited nature of the question before us, necessary
for effective judicial review. Much of the offered material relates either to
whether the existing contracts can be extended or to the merits of the GAO
protest. The latter issue is clearly not in front of us. While the former question
is relevant to some extent, as we explain below, accepting the new material is
not necessary because the agency concedes the thrust of plaintiff’s point, and
including it would be tantamount to opening the agency’s D&F to de novo
review.

II.    Whether the Agency Justified its Decision Using the Best Interest or
       Urgent and Compelling Circumstances Rationale

       As referenced above, when an agency elects to override the automatic
CICA stay, it must explain whether its decision was predicated on its “best
interests” or for “urgent and compelling” reasons. See 31 U.S.C. §
3553(d)(3)(C) (2006). Although the D&F here purports to rely on a “best

                                        8
interest” rationale, it is confusing in that it also incorporates language
consistent with the alternative “urgent and compelling” rationale, prompting
plaintiff to urge the court to hold the agency to the more stringent proof
required for the latter determination.

        The September 9, 2013 notice letter issued by DOS to accompany the
D&F provides that the agency “determined it to be in the best interest of the
Government to proceed with contract performance.” AR 1. In support of its
“best interests” determination, however, the agency cites to the wrong statutory
authority, 31 U.S.C. § 3553(d)(3)(C)(i)(II), which assumes that “urgent and
compelling circumstances that significantly affect interests of the United States
will not permit waiting for the decision of the Comptroller General concerning
the protest.” And at paragraph seventeen of the D&F, although the agency
invokes the “best interest” rationale, it goes on to state that “[t]here are urgent
and compelling circumstances that significantly affect the interests of the
United States that will not permit waiting for the GAO’s decision on the
protest.” AR 6. Similarly, in the final paragraph of the D&F, the agency
concludes that “authorizing contract performance by PAE . . . is in the best
interests of the United States Government due to urgent and compelling
circumstances that significantly affect the interests of the United States and
will not permit waiting for GAO’s decision on the protest.” AR 15.

        Defendant concedes that the D&F is confusing, but it insists that the
controlling language throughout is the “best interests” justification. We agree.
In the introductory paragraph, the D&F recites that ensuring that life support
services continue without disruption is in the government’s “best interests.”
AR 2. This rationale is repeated throughout the D&F as the agency explains
why transition to PAE ensures the government’s best interests by lessening the
risk that there will be a disruption in life support services. See AR 3 (“Without
life support services for these DOS sites, the DOS Mission and the security,
health, safety and welfare of personnel in Iraq will be severely jeopardized.”);
AR 5 (“[T]he transition schedule . . . will not accommodate any unforeseen
delays or external events that may further impact the transition schedule.”); AR
6 (“The security vetting process for workers is drawn out and complicated, and
filled with inherent delays.”); AR 11 (“To the extent[] [that DOS] was able to
negotiate a bridge contract with a vendor(s) to provide services directly to
[DOS], it is not in the Government’s best interest to do so [because] . . . a short
term arrangement would be at much greater cost [and] . . . [t]here is no single
contractor who is ideally suited to provide all services in house.”).


                                        9
       In sum, despite confusing language sprinkled throughout the D&F, we
conclude that the agency reasoned that the stay override was justified because
that course of action was in the government’s best interest.5

III.   Whether Plaintiff has Proven that the Agency’s Best Interest Decision
       was Arbitrary and Capricious

         The fundamental reason offered by the agency for its override decision
is that it is in the government’s best interest to proceed with transition to PAE
in order to ensure that essential life support services, including food, fuel for
electricity, and emergency response services continue uninterrupted. The D&F
is 14 pages in length. It begins by summarizing the mission in Iraq and
describing the contracts that are currently in place to enable the government
to carry out that mission. The D&F catalogs the current contracts and
interagency agreements by type, by contractor and agency, and by duration.
The Head of Contracting Activity in DOS, Cathy J. Read, recites that she
considered sole-source extensions and bridge contracts and decided that
pursuing an alternative to PAE’s performance was not in the government’s
best interest because, in transitioning to PAE, even a best-case scenario left no
more than a three month cushion. If there are unexpected difficulties, and she
believes that to be plausible given the location, that cushion could disappear
and there might be a gap in performance.

      The D&F attempts to assess the viability of contract extensions or sole-
source bridge contracts against the backdrop of variables involved in the




       5
         While the “best interests” rationale is, at it sounds, less demanding,
there are ramifications at GAO from the agency’s choice of that rationale. “If
the head of the procuring activity responsible for a contract makes a finding”
based on the best interest justification, then, in the event the protestor
establishes grounds for its protest, “the Comptroller General shall make
recommendations . . . without regard to any cost or disruption from
terminating, recompeting, or reawarding the contract.” 31 U.S.C. §
3554(b)(2).

                                       10
transition to the new BLiSS contractor.6 The D&F assesses the feasibility of
extending each of the contracts in turn.

        The life support contract being performed by KBR is set to expire on
December 31, 2013. The agency acknowledges that KBR’s contract could be
extended through June of 2014. PAE needs approximately 45 to 90 days to
obtain authorization to mobilize from the government of Iraq. Then, KBR
requires 90 days for demobilization which is coextensive with PAE’s time for
transition. Thus, there is a 130 to 180 day window projected for PAE to
acquire approval, for PAE to transition, and for KBR to demobilize. Even
with PAE beginning the process in September of 2013, KBR’s contract will
likely need to be extended into January, February, or March of 2014 in order
to complete the transition to PAE without a lapse in services. If the window
for transition of this contract was delayed until after GAO issues its decision,
then approval, transition, and demobilization is projected to be complete
anywhere from April to June 2014. Shifting the transition process for this


       6
      The DOS Executive Director of the Bureau of Near East Affairs, Lee
Lohman, asserts in a declaration attached to the D&F the following:

       The security situation in the Middle East and in Iraq at the
       moment is a grave and growing concern. . . . [T]he host
       government continue[s] to be poorly-defined and ever-changing
       . . . [and] regularly erects barriers or raises objections to the
       operations of the [United States government] support
       contractors within Iraq. Managing these procedures and
       overcoming these barriers requires an extraordinary amount of
       additional energy, on the part of both Embassy officials and
       contractor companies, to complete actions considered routine in
       countries with longer-established governments, such as
       transportation requests, customs clearance and visas for
       government and contractor personnel. . . . Accordingly, the
       transition to the new BLiSS contractor may take longer than
       planned and may face additional obstacles.

AR 18. In addition to the time required to obtain licenses, security clearances,
visas, or approval from the government of Iraq, there must also be time built
into the schedule for the new contractor to transition in and for the incumbent
to demobilize.

                                      11
contract eliminates or significantly reduces the cushion that DOS must
preserve in order to “accommodate any unforeseen delays or external events
that may further impact the transition schedule.” AR 5.

        The Army Sustainment Command – First contract with URS
Corporation also ends on December 31, 2013. The agency asserts in the D&F,
without explanation, that URS Corporation’s contract cannot be extended
beyond March of 2014. While the D&F did not provide an estimate for the
time needed to accomplish PAE’s transition and URS Corporation’s
demobilization, the D&F does anticipate that it will take PAE six months to
obtain the International Traffic in Arms license that is required to maintain and
support a system with radiological materials under the BLiSS contract.
Assuming that PAE applied for this license in September of 2013, it could be
February of 2014 before PAE secures the license. Even in a best-case
scenario, there is roughly a month of cushion during which unforeseen
complications could be addressed. If PAE was forced to delay application for
the license until after GAO resolves the protest, then PAE would likely not
have the license necessary to carry on URS Corporation’s work when the
contract expires on March 31, 2014.

       DLA’s contract with Ram Dis Ticaret A.S. for fuel ends on December
31, 2013. This contract could be extended through June 30, 2014. The D&F
notes that “there is no requirement for demobilization that would impact the
schedule.” AR 7. DOS estimates, however, that it will take PAE 90 to 120
days to obtain licenses, diplomatic notices, and register as a commodity
supplier with the government of Iraq. While PAE could accomplish this
before the existing contract ends, that contract might have to be extended into
January of 2014. In the event this process began after GAO issued its
decision, then PAE would have all of the necessary requirements in place in
April or May of 2014. That would leave at most three months, and worst case
only two months, of buffer time to safeguard against a disruption in services
due to unforseen circumstances.

       DOS considered a partial override, i.e., having PAE take over the work
which had the least room for unexpected problems, and found that this option
was untenable and would add to the government’s risk because it would
require cooperation between contractors who have conflicting interests. AR
15. The agency also explained that it considered multiple sole-source bridge
contracts, but each would involve negotiations and a 60-90 day transition in


                                       12
period for obtaining visas and clearances, making these interim measures
unreliable. AR 10.

        The agency has taken the position that, even if PAE’s transition for each
of these contracts began in September of 2013, there is still a very real
possibility that DOS will have to unilaterally extend some7 of the incumbent
contracts pursuant to 48 C.F.R. § 52.217-8 to ensure continuity of services.
After listing all of the steps involved in maintaining the status quo, the agency
concluded, “even if the extensions were granted, it is not a feasible approach
and cannot ensure continuity of services.” AR 5. The agency further
explained that, if approval for contract extensions,

        was granted in a reasonable amount of time, even a full six
        month extension would not ensure adequate time for transition
        and would not accommodate any unforeseen delays or
        disruptions. Given the current volatile situation in the Middle
        East there is significant concern that there will be evacuations
        and/or delays for contractor staff transitioning.

AR 9.

         The relevant question is whether plaintiff has shown that this analysis
as to the government’s best interest was arbitrary or capricious. Plaintiff
contends that the agency failed to give sufficient attention to whether there
were reasonable alternatives to the stay override, specifically through contract
extensions, or sole-source bridge contracts. It suggests that contract extensions
could be made pursuant to 48 C.F.R. § 52.217-8, which provides, “The
Government may require continued performance of any service within the
limits and at the rates specified in the contract. . . . The option provision may
be exercised more than once, but the total extension of performance hereunder
shall not exceed 6 months.” It also argues that there is no suggestion in the
D&F that the agency began the process of invoking 48 C.F.R. § 52.217-8 or
that it attempted to negotiate with existing contractors to enter into sole-source
contracts extending performance.


        7
        The D&F also explores the DLA contract with Anham for food and
the DOS contract with Olgoonik, Inc. for fuel and concludes that these
contracts could be extended by their own terms long enough so that continued
provision of these services is not a concern.

                                       13
       While it is correct that there is no reason to believe the agency actually
began the process of triggering contract extensions, or attempted to negotiate
sole-source bridge contracts, what is clear is that the agency was aware of
those possibilities, seriously considered them, and rejected them with coherent
and reasonable explanations. The extensions that the government could invoke
by right would only take the existing contracts out until March 31 or June 30,
2014. Given the need to allow for demobilization and transition, the cushion
periods effectively ranged from 0 days to 90 days. Other contract vehicles
beyond that time would have involved negotiation, competition, and their
attendant uncertainties.

        Given the fact that all the transition activities would occur in Iraq,
which the agency describes as a dangerous place and one in which it is in the
government’s best interest to limit personnel and the size of its “footprint” in
order to minimize security concerns, AR 12, and that multiple contract
vehicles would have to be extended, with the attendant need for visas, housing
and licensing, it was not arbitrary or capricious to limit the risks of transition
by overriding the stay. These are not illusory concerns. In light of the
possibility that extending existing contracts or implementing sole-source
bridge contracts would not unfold with the efficiency of a Swiss watch, the
agency’s decision that the best interest of the government was served by
initiating immediate transition to PAE rather than pursuing what it believed
was a risky alternative approach was not unreasonable. While the government
may have been cautious, it was not arbitrary or capricious to insist on a stay
override to ensure a buffer period during the transition schedule.

IV.    Whether We Apply the Test for Injunctive or Declaratory Relief

        Plaintiff seeks both a declaration invalidating the agency’s override
decision and a permanent injunction halting PAE’s performance during the
pendency of the GAO protest. As defendant points out, the test for obtaining
injunctive relief is more extensive than that for obtaining declaratory relief.
Plaintiff concedes the point, but takes the position that it would be sufficient
for its purposes if the court merely declared that the D&F was arbitrary and
capricious. By negating the D&F, what would automatically re-emerge,
according to plaintiff, is the statutory CICA stay.

       Defendant disagrees, contending that, if what plaintiff really seeks is an
end to PAE’s current performance, this amounts to affirmative relief and is
tantamount to an injunction. It cites PGBA, LLC v. United States, 389 F.3d

                                       14
1219, 1228 (2004) (affirming the trial court’s decision to deny plaintiff’s
request for declaratory relief when the nature of the relief sought was
injunctive). If the government is correct, plaintiff would also have to meet the
four-part test for obtaining an injunction: (1) success on the merits, (2) proof
that the plaintiff will suffer irreparable harm if the court withholds injunctive
relief, (3) proof that the balance of hardships favors the grant of injunctive
relief, and (4) that 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).
Defendant contends that plaintiff clearly cannot demonstrate that it would
suffer permanent injury during the pendency of the stay or that its injury would
exceed the threat to the government from delay.

        This is a topic on which judges of this court have disagreed. Compare
URS Fed. Servs., Ins. v. United States, 102 Fed. Cl. 674, 675-76 (2012)
(holding that declaratory relief was sufficient), and Chapman Law Firm Co.
v. United States, 65 Fed. Cl. 422, 424 (2005) (concluding that declaratory
relief reinstates the statutory stay), with Superior Helicopter LLC v. United
States, 78 Fed. Cl. 181, 194-195 (2007) (applying the injunctive factors).8

        We need not resolve the question, however. Either remedy requires
plaintiff to prevail on the preliminary issue, namely, that the D&F was



       8
        See also the discussion in James Y. Boland, CICA Override Practice
– The Case Against Injunctive Relief, 50 Gov’t Contractor, No. 1, ¶ 1 (Jan. 9,
2008) (citations omitted):

       In PGBA, a declaration would have been tantamount to an
       injunction because the plaintiff wanted the [Court of Federal
       Claims] to terminate the award – in other words, relief that was
       an inherently coercive act by the court with respect to the
       agency. In CICA override cases, however, declaratory relief is
       not tantamount to an injunction because there is no coercive
       action on the part of the court. A declaration invalidated the
       override decision, and the statute simply reimposes the stay that
       is otherwise required by law. By its nature, a declaratory
       judgment prevents a future override decision based on the
       rationale stated in the D&F that has been declared invalid.


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arbitrary and capricious. We have concluded that the agency’s decision was
not.

                              CONCLUSION

        For reasons explained above, we grant in part and deny in part
plaintiff’s motion to supplement the administrative record. We deny plaintiff
and plaintiff-intervenor’s joint motion for reconsideration of our denial of
plaintiff’s motion for a preliminary injunction. We deny plaintiff’s and
plaintiff-intervenor’s motions for judgment on the administrative record. We
grant defendant’s and defendant-intervenor’s motions for judgment on the
administrative record. The clerk is directed to enter judgment accordingly and
dismiss the complaint with prejudice. No costs.


                                          s/ Eric G. Bruggink
                                          ERIC G. BRUGGINK
                                          Judge




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