         In the United States Court of Federal Claims
                                         No. 14-1005C
                                          (Bid Protest)
                                  (Filed: February 13, 2015) 1


*************************
                                               *     Pre-award Bid Protest; 28 U.S.C.
DRAKEN INTERNATIONAL, INC.,                    *     § 1491(b)(1); Competition in Contracting
                                               *     Act; 41 U.S.C. § 3306(a); Solicitation
               Plaintiff,                      *     Terms Coupled With Procurement Delay
                                               *     Did Not Unduly Restrict Competition;
               v.                              *     Ripeness.
                                               *
THE UNITED STATES,                             *
                                               *
               Defendant,                      *
                                               *
               and                             *
                                               *
AIRBORNE TACTICAL ADVANTAGE                    *
CO., LLC,                                      *
                                               *
              Intervenor.                      *
                                               *
*************************

      Alan Pemberton, Saurabh Anand, and Christine Minarich, Covington and Burling, LLP
1201 Pennsylvania Ave, NW, Washington, D.C. 20004, for Plaintiff.

       Joyce R. Branda, Robert E. Kirshman, Jr., Bryant G. Snee, and Joseph E. Ashman, U.S.
Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben
Franklin Station, Washington, D.C. 20044, for Defendant.

       Robert K. Tompkins, Holland & Knight, 800 17th Street, NW, Suite 1100, Washington,
D.C. 20006, for Intervenor. Elizabeth M. Gill and Elizabeth N. Jochum, Holland & Knight, 800
17th Street, NW, Suite 1100, Washington, D.C. 20006, Of Counsel. Richard B. Benenson,
Brownstein Hyatt Farber Schreck, LLP, 410 Seventeenth Street, Suite 2200, Denver, CO 80202,
Of Counsel.




1
        The Court issued this opinion under seal on January 31, 2015, and directed the parties to
file proposed redactions by February 13, 2015. The Court publishes this Opinion indicating
redactions by asterisks “[***].”
             _________________________________________________________

                               OPINION AND ORDER
             _________________________________________________________

WILLIAMS, Judge.

        This pre-award bid protest comes before the Court on the parties’ cross-motions for
judgment on the Administrative Record (“AR”). Plaintiff, Draken International, Inc. (“Draken”),
challenges the procurement process implemented by the Department of the Navy’s Naval Air
Systems Command (“NAVAIR”) under solicitation number N00019-12-R-1001. Plaintiff argues
that NAVAIR violated the Competition in Contracting Act (“CICA”) and the Federal
Acquisition Regulation (“FAR”)2 because its delay in conducting the procurement coupled with
the solicitation’s requirement that the awardee provide both subsonic (“Type III”) and supersonic
(“Type IV”) aircraft unduly restricts competition. Plaintiff asserts that this solicitation process
will result in a de facto sole-source award to Airborne Tactical Advantage Co., LLC (“ATAC”),
the incumbent. Because ATAC is currently being paid by the Government to maintain its fleet,
Plaintiff submits that ATAC can avoid the prohibitive cost foisted upon other offerors of meeting
operational readiness requirements during a prolonged procurement process. Plaintiff also
protests the duration of a sole-source bridge contract awarded to ATAC, which could potentially
last until July 2015, given the option periods. Finally, Plaintiff contends that it was treated
unequally compared to [***] other offerors that were allowed to provide new airworthiness data
after the deadline for submission of initial offers, while it was not given this opportunity.

       Plaintiff seeks a declaratory judgment that NAVAIR violated CICA and the FAR by
unduly restricting competition in its conduct of this procurement. Plaintiff also asks the Court to
order NAVAIR to limit the term of ATAC’s sole-source bridge contract to coincide with a final
award date and to amend the solicitation to separately procure subsonic and supersonic aircraft
services. Alternatively, Plaintiff asks the Court to limit an award under the current solicitation to
the base year and issue a new solicitation for subsequent years or allow all offerors the
opportunity to offer new aircraft in the event their originally proposed aircraft are no longer
available.

       Defendant argues that Draken’s challenge to the solicitation’s terms combining
procurement of supersonic and subsonic aircraft is untimely, that the delay in the procurement
process resulted from multiple protests, and that the solicitation’s terms are reasonable and
necessary to meet NAVAIR’s requirements. Defendant asserts that Draken was not treated any

2
        Plaintiff argues that Defendant violated “FAR Part 6” and FAR 15.305. See Pl. Mot. for
Judgment on the AR at i, 24. Plaintiff does not specify a specific provision within FAR Part 6,
but FAR Part 6 generally “prescribes policies and procedures to promote full and open
competition in the acquisition process.” 48 C.F.R. § 6.000 (2012). Plaintiff does not further
explain how it believes the Government violated FAR 15.305, which discusses factors for
proposal evaluation and requires that “an agency shall evaluate competitive proposals and then
assess their relative qualities solely on the factors and subfactors specified in the solicitation.”
48 C.F.R. § 15.305.
                                                 2
differently than other offerors, as Draken was also given a chance to amend its proposal. ATAC
argues that Draken does not have standing to bring the instant protest because it no longer
qualifies for award, that no improper bundling of requirements has occurred, and that Draken’s
allegations of unfair treatment are not ripe.

        For the reasons that follow, the Court finds that Plaintiff has standing, its protest is
timely, the Agency’s delayed procurement process did not violate CICA, and Draken’s challenge
to unequal treatment is unripe.

                                        Findings of Fact3

The Contracted Air Services Program and Issuance of Solicitation N00019-12-R-1001

        The United States Department of the Navy’s Contracted Air Services (“CAS”) program
“provides Contractor owned and operated aircraft, personnel, equipment and support for Fleet
training and exercises to a variety of customers to include: United States Navy (USN), Foreign
Military Sales, and other Department of Defense (DoD) agencies and DoD contractors.” AR
223. Contractors working under the CAS program provide aircraft and related services for
“airborne threat simulation” and training exercises for the benefit of “shipboard and aircraft
squadron weapon systems operators and aircrew . . . .” Id. In May 2009, ATAC was awarded a
firm fixed price/indefinite-delivery indefinite-quantity contract for the provision of both subsonic
Type III and supersonic Type IV aircraft, which fly at higher speeds and are more expensive and
difficult to obtain, to support the CAS program. Id. at 35-36, 225, 3407. This contract ended on
July 28, 2014, and NAVAIR has been obtaining these services via ATAC’s sole-source bridge
contract since then. Id. At 3407.

        On June 21, 2013, Sean Stackley, the Assistant Secretary of the Navy (Research,
Development and Acquisition) wrote a “Determination and Findings For Authority to Award a
Single Source Task Order Contract” for the solicitation at issue. Id. at 4469. This document was
created because the Department of Defense may not award task and delivery order contracts
exceeding $103 million, inclusive of options, to a single source, “unless the head of the agency
determines in writing that the task or delivery orders expected under the contract are so integrally
related that only a single source can reasonably perform the work.” Id. According to Assistant
Secretary Stackley, a single-source indefinite-delivery/indefinite-quantity contract permitted “the
greatest flexibility in both quantities and schedule to meet the needs of the Fleet in providing
combat readiness training.” Id. Furthermore, making a single contractor “the integrator across
all locations” avoided the Government either having to take on this integrator role itself or
expend additional resources that were not budgeted. Id. at 4470.

       Assistant Secretary Stackley articulated reasons why Type III and Type IV aircraft were
included in the same solicitation, stating:




3
       These findings of fact are derived from the AR. Additional findings of fact are in the
Discussion.
                                                 3
       The simultaneous presentation requirement for high subsonic and supersonic
       aircraft was developed based on the current contract practice of authorizing the
       contractor to fulfill high subsonic missions with supersonic aircraft, which are
       billed at the lower high subsonic contract rate. This augmentation of high
       subsonic aircraft allows the Government to minimize the required quantity of high
       subsonic aircraft without compromising the ability to cover surge requirements.

       With a multiple award contract, the ability to augment high subsonic aircraft for
       surge requirements is lost, and the Government would be required to increase the
       required number of high subsonic aircraft to maintain the same level of contractor
       coverage. The ability to augment high subsonic aircraft saves the [United States
       Navy] and [the Department of Defense] money because it results in a higher
       utilization of supersonic aircraft and avoids the payment of fixed aircraft costs for
       additional high subsonic aircraft. Due to fiscal constraints, which are expected to
       become more severe, the [United States Navy] and [the Department of Defense]
       do not have the funds to cover the cost of additional high subsonic aircraft;
       therefore, award of a multiple award contract would result in a degraded level of
       training because fewer aircraft would be available for scheduling.

       Additionally, this scenario would lead to inefficiencies and increase contractor
       costs to the point of making the desired level of training unaffordable. A single
       source provider gains efficiencies due to commonality of resources provided for
       each aircraft platform at each site. Aircraft platforms at each site require
       mechanics, parts, and tooling, as well as Quality Assurance, training, certification
       and technical publication support functions. These can all be achieved across both
       the high subsonic and supersonic aircraft using shared manpower, common
       spaces, and a large amount of common parts and tooling.

       Two contractors performing at a single location, each providing the training
       services on separate types of aircraft, would require additional space, parts,
       tooling and personnel resources to maintain the same level of service as a single
       source provider. This would directly increase the contract costs of the training.
       The [United States Navy] and [the Department of Defense] do not have the funds
       to cover increased training costs; therefore less training flight time would be
       ordered – resulting in a degraded state of operational readiness.

       For the reasons stated above, the task orders expected to be issued under this
       contract are so integrally related that only a single source can reasonably perform
       this effort, and awarding task orders to different contractors based upon the type
       of aircraft would not be feasible.

Id. at 4470-71. Assistant Secretary Stackely concluded, “[i]f a single source task order contract
award is not approved, the Government would lose the advantage of efficiencies and economies
of a single contractor operating all aircraft across all geographic areas, would risk aircraft
availability for surge requirements, and would incur duplication of costs associated with
providing and maintaining multiple fleets of aircraft.” Id. at 4473.

                                                4
        On July 25, 2013, NAVAIR issued the solicitation. The performance period was to be up
to five years, comprised of a base year and four one-year options. Id. at 258, 514. This
solicitation sought at least 14 Type III aircraft and five Type IV aircraft and related services. Id.
at 721, 723. The original due date for offers was September 24, 2013, and the contract was to
commence upon award with a 60-day “phase-in period,” during which the contractor was
required to become operationally ready. Id. at 495, 514. Operational readiness included
securing an East Coast permanent basing site and “positioning required aircraft and support
infrastructure to other permanent basing sites.” Id. at 998.

        Section L, Volume 2.1, set forth the technical pre-requisites, requiring a copy of the FAA
Airworthiness Certificate for each aircraft, identifying the aircraft by tail number, and identifying
each aircraft as “primary” or “backup.” Id. at 569. Volume 2.3 required offerors to provide
detailed aircraft airworthiness data. This data was to include tracking and planning for
replacement of parts, an inspection plan, modifications to each aircraft after it was retired from
military use, “an accounting for the timeframe from manufacture to proposal submittal date” and
a description of each aircraft’s maintenance history. Id. at 572-73.

        The “anticipated award date” was stated to be March 1, 2014, and the solicitation
indicated that “[t]his information is provided for use as a basis for schedules and burden (labor,
overheads, G&A, etc.) mid-point calculations.” Id. at 586. Additionally, the performance
periods were described as “estimates only.” Id. at 515. The award would be made on a “best
value” basis in consideration of the technical, past performance, and cost factors, in that order of
importance. Id. at 589.

Amendments to the Solicitation and Air USA, Inc.’s Protests

        The solicitation was amended 10 times. The amendment relevant to the instant case is
Amendment 6, issued on October 11, 2013, which created two phases to the technical evaluation.
Id. at 848, 866-67. In Phase I, the Government would create a single technical rating for each
proposal based on the required technical elements, including the provision of airworthiness data.
In Phase II, offerors were required to provide FAA Airworthiness Certificates for each aircraft
“no later than three (3) business days following the Government’s request for Final Proposal
Revisions (FPRs), “anticipated to be on or about 3 July 2014.” Id. at 1059. Amendment 5
changed the due date for proposals to November 12, 2013 and the anticipated award date was
extended to April 1, 2014, in Amendment 6. Id. at 847, 882. Amendment 6 also removed the
requirement that offerors provide FAA Airworthiness Certificates at the time of proposal
submission.
        Amendment 6 was spurred by the September 24, 2013 agency protest of Air USA, Inc.
(“Air USA”). Id. at 2737, 2759. In its protest, Air USA argued that requiring offerors to submit
an FAA Airworthiness Certificate and tail numbers as a prerequisite to award restricted
competition because only the incumbent would be able to provide this information at the time of
proposal submission. Id. at 2744-45. Specifically, Air USA contended:

       [T]he Agency is not only demanding that the aircraft have FAA Airworthiness
       Certificates and all tail numbers be assigned at least six (6) months before

                                                 5
       contract award and an additional sixty (60) days before mission readiness, the
       Agency is asking the bidders to make an investment of approximately tens of
       millions of dollars in aircraft to sit on the tarmac and provide all maintenance and
       indirect costs to protect their investment with no return on investment. In that
       regard and upon information and belief, the incumbent is the only bidder that can
       meet that requirement.

Id. at 2746.

        After Amendment 6 was issued, on October 23, 2013, Air USA filed a supplement to its
first agency protest. In this supplement, Air USA argued that an FAA Airworthiness Certificate
could not be obtained without the aircraft and maintenance records, so changing the date of
submission of the FAA Airworthiness Certificates but still requiring airworthiness data at the
time of proposal submission negated Amendment 6. Id. at 2761. Air USA referenced a
Question and Answer, regarding the timing of submitting airworthiness data and asked if the
requirements of Technical Element #2, the airworthiness data, could be submitted at the same
time as the FAA Airworthiness Certificates. Id. The Agency responded no, stating:

       Airworthiness Data is a critical component of the CAS Fighter Jet Source
       Selection. This technical evaluation factor represents fundamental aspects of
       airworthiness and will be used to determine an [offeror’s] airworthiness risk
       assessment while flying under Public Use Status. As a result, this information
       must be received during the evaluation phase of the source selection in order to
       evaluate, assess and make a determination, which is different than receiving the
       FAA certification which only requires validation. Therefore no conflict exists in
       the solicitation and no revision will be made.

Id. at 2762. On November 5, 2013, the Agency rejected Air USA’s protest, reaffirming that
airworthiness data was “necessary for proposal evaluation” and “needed at time of proposal
submission.” Id. at 2765.

         On November 7, 2013, Air USA filed a Government Accountability Office (“GAO”)
protest raising the same ground as its agency protest. Id. at 2767. Air USA requested that the
award date be stayed in its GAO protest. Id. at 2769. On February 14, 2014, the GAO denied
Air USA’s protest, finding that the Agency had “reasonably established a legitimate need for
airworthiness data documentation at the time of proposal submission,” and that “[g]iven the
critical need to ensure the safety of government and civilian personnel . . . the agency’s interest
in evaluating each aircraft’s airworthiness data through a thorough assessment of the
documentation provided at the time of proposal submission is reasonable to achieve the highest
level of reliability and effectiveness.” Id. at 3243.

Proposal Evaluation Results, Evaluation Notices, and Discussions

        [***] companies submitted proposals in response to the solicitation – [***], ATAC,
Draken, and [***] -- and were evaluated under the factors of technical, past performance, and
total evaluated price. Id. at 3256. On June 18, 2014, [***] were given an [***] rating for the

                                                6
technical factor, with [***] and [***] being found a [***] in this category and Draken and
ATAC being found a [***]. Id. In the past performance category, [***] had a [***] rating, both
ATAC and [***] were [***] and Draken was given a [***] rating. Id. Draken’s price was the
[***] of the [***] bidders. Id. All were found to be [***] with the RFP and all were deemed
[***] of receiving the award. Id. In determining [***] rating and risk for the technical factor,
the evaluators noted as one [***] that [***] had not provided any [***]. Id. at 3263. Draken’s
[***] included [***]. Id. at 3277. Draken received scores of [***] [***] [***] [***]. Id. at
3280. The April 1, 2014 award date passed without an award being made, and award is now
anticipated in February 2015.4 The Procuring Contracting Officer testified that the anticipated
award date has been pushed back several times due to ongoing discussions with the offerors, the
need for additional time to evaluate proposal revisions, and Draken’s instant bid protests.

        On June 20, 2014, the Agency determined that all offerors were within the competitive
range and that discussions pursuant to FAR 15.306(d) were necessary due to [***]. . . .” Id. at
3371. At the beginning of July 2014, NAVAIR sent out 107 evaluation notices (“ENs”) to the
offerors so that they could provide further information “to assist the Government in its final
evaluation of the proposals.” Id. at 3416.5 These ENs addressed various deficiencies in each
offeror’s proposal. One EN allowed [***] to provide the missing airworthiness data required by
Technical Element # 2, but the record does not indicate whether [***] provided this data. Id. at
3439. Offerors were originally instructed to respond to the ENs by July 24, 2014, but this date
was extended to August 4, 2014, at the request of offerors. Id. at 4467.

        On July 24, 2014, [***] sent a letter to NAVAIR regarding EN responses, indicating that
it was redirecting [***]. Id. at 3801-02. The record does not indicate what the Government’s
response to [***] letter was.

ATAC Bridge Contract

        While the EN process was ongoing, on July 11, 2014, the Navy issued a Justification and
Approval For Use of Other Than Full and Open Competition (“Justification”) to award ATAC a
sole-source bridge contract commencing on July 29, 2014, with a three-month base period and
three additional three-month option periods, permitting the sole-source contract to last until July
2015. Id. at 3373, 3407. The Justification stated that the sole-source contract was necessary to
prevent a gap in training services between the end of ATAC’s incumbent contract on July 28,
2014, and the “follow on competitive contract.” Id. at 3407. Furthermore, according to the
4
       On November 28, 2014, the Government filed a motion to amend the Administrative
Record to add a November 26, 2014 Declaration of Phillip Smith, the Procuring Contracting
Officer. Plaintiff did not oppose this motion. As this testimony directly relates to the alleged
excessive timeframe of the procurement at issue, this motion is granted. See Axiom Res. Mgmt.
v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009).
5
       Although the AR only contains ENs sent to [***] and [***], and the proposals of these
two companies in response to the ENs, the record reflects that [***] offerors received ENs and
were given an opportunity to respond. The Agency created a “CAS Fighter Jets EN Matrix” that
catalogues each EN, each offeror’s response, and the status of resolution. Id. at 3410. Draken’s
EN responses are also referenced in the Agency’s denial of its protest. Id. at 4467.
                                                7
Justification, ATAC had personnel on site and could continue performance and avoid a “gap in
contractual support” that “would ultimately lead to an unacceptable decrease in mission
readiness by precluding the pilots and ships the opportunity to train in simulated scenarios.” Id.
at 3408.

Draken’s Agency Protest

        On July 24, 2014, Draken filed a protest with NAVAIR arguing that the short operational
readiness requirement forced all offerors except the incumbent to possess and maintain aircraft at
their own expense while the Agency made its selection decision, and the requirement that
offerors provide both Type III and Type IV aircraft “became improperly restrictive when
combined with the extraordinary procurement delays that the Agency has imposed on this
process.” Id. at 4438. Draken acknowledged that while these requirements “posed some barriers
to competition” when the solicitation was issued, “these limitations arguably were reasonably
necessary to meet the Agency’s needs and provided the agency a reasonable period of time to
review offerors’ proposals.” Id. at 4439. However, according to Draken, “as the delays and
uncertainty in the selection process have mounted, these limitations have made the selection
process defective and anticompetitive, and have proven to be unnecessary in light of the
Agency’s needs.” Id. In this protest, Draken noted [***]. During an August 5, 2014
teleconference with the Agency regarding its agency protest, Draken confirmed that it would no
longer be able to meet the Type IV requirement. Id. at 4467.

         On September 5, 2014, NAVAIR denied Draken’s protest. The Agency found that any
protest of the inclusion of both Type III and Type IV aircraft was required to be submitted prior
to the closing date for initial receipt of proposals. Id. at 4486. The Agency rejected Draken’s
argument that the length of the evaluation process could make a requirement that was not
restrictive at the time of proposal submission unduly restrictive at a later time.

                                           Discussion

Standing

         As a preliminary matter, ATAC challenges Draken’s standing. 6 Draken “‘bears the
burden of establishing [the] elements [of standing]’” because it invokes this Court’s jurisdiction.
Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)
(alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). To
have standing in a bid protest, a protestor must be an “interested party.” Orion Tech., Inc. v.
United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013) (citing Rex Serv. Corp. v. United States,
448 F.3d 1305, 1307 (Fed. Cir. 2006)). To be an “interested party,” a protestor must show: (1)
that it is an “actual or prospective bidder” (2) “whose direct economic interest would be affected
by the award of the contract.” Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380,
1384 (Fed. Cir. 2012) (citing Rex, 448 F.3d at 1307). As the term denotes, an actual bidder is
one who submitted a bid for the challenged procurement. Rex, 448 F.3d at 1307.

6
        While the Government argues that Draken’s protest of the solicitation terms is untimely,
it does not challenge Draken’s standing to protest.
                                                8
        “Generally, to prove the existence of a direct economic interest, a party must show that it
had a ‘substantial chance’ of winning the contract.” Orion, 704 F.3d at 1348 (citing Rex, 448
F.3d at 1308). There is, however, “[a]n exception to that standard [] when a prospective bidder
challenges the terms of the solicitation itself, prior to actually submitting a bid.” Id. (citing
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361 (Fed. Cir. 2009)). In the pre-bid
context, the protestor can establish a direct economic interest “by demonstrating that it suffered a
‘non-trivial competitive injury which can be redressed by judicial relief.’” Id. (quoting Weeks
Marine, 575 F.3d at 1361-62). However, where bids have been submitted but an award has not
been made, the correct test of economic interest is the “substantial chance” test used in the post-
award context, not the “non-trivial competitive injury” test. Id.

         ATAC contends that Draken lacks standing because it has unresolved ENs and can no
longer meet the Type IV aircraft requirement and thus “currently does not have a substantial
chance of receiving the contract, but for the alleged error.” Intervenor Mot. for Judgment on the
AR 20. To satisfy the substantial chance test, a protester “must demonstrate more than a ‘mere
possibility that [it] would have received the contract but for the [alleged] error [in the
procurement process].’” CliniComp Int’l v. United States, 117 Fed. Cl. 722, 734 (2014)
(alternations in original) (internal citations omitted) (quoting Asia Pac. Airlines v. United States,
68 Fed. Cl. 8, 18 (2005). However, “‘a protester is not required to show that but for the alleged
error, [it] would have been awarded the contract.’” Id. (alteration in original) (quoting Data Gen.
Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996)).

        As ATAC acknowledges, “[t]he question whether a protester ‘ha[s] a substantial chance
of securing the award,’ turns on whether the protester would have had a substantial chance if not
for the alleged errors.” Comint Sys. Corp. v. United States, 700 F.3d 1377, 1383 (Fed. Cir.
2012) (emphasis added) (quoting Myers Investigative & Sec. Servs., Inc. v. United States, 275
F.3d 1366, 1370 (Fed. Cir. 2002)). The error alleged by Draken in this protest is that the
Agency’s delay in conducting the procurement, coupled with its operational readiness
requirements for both Type III and Type IV aircraft, makes the solicitation anti-competitive. If
these alleged errors had not occurred, i.e. the Agency had met its original anticipated award date
and not delayed the procurement process, Draken could have – as it did – submitted its offer and
met the solicitation terms, expensive though they were. Only after the Agency extended the
anticipated award date by almost a year did the requirements for Type IV aircraft become
financially prohibitive.7 As Draken submitted the [***] bid and [***] ATAC in the technical
risk category, Draken had a “substantial chance” of being awarded the contract, but for the
alleged defect in the procurement process – unduly restrictive solicitation terms and prolonged
delay. The fact that Draken has allegedly unresolved ENs does not alter this conclusion as the
EN process has not been concluded.

7
        The requirement to supply both Type III and Type IV aircraft became impossible for
Draken to meet once, after delay, it lost its surprise subcontractor. Dec. 8, 2014 Oral Arg. Tr. at
23:3-7 (describing how Draken was able to originally submit a proposal due to finding a
“surprise” subcontractor, who has been “unable to stick with it throughout these extensive
delays”).


                                                 9
Standard of Review for Bid Protests

        The Court evaluates bid protests pursuant to the Administrative Procedure Act’s standard
of review for an agency action. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir.
2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001)). This Court will not disturb an agency’s procurement decision unless the
Court finds that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A) (2012); Adams & Assocs. v. United States, 741
F.3d 102, 105-06 (Fed. Cir. 2014). Under Rule 52.1, the parties are limited to the AR, and the
Court makes findings of fact as if it were conducting a trial on a paper record. See Bannum, 404
F.3d at 1356.8 Looking to the AR, the Court must determine whether a party has met its burden
of proof based on the evidence in the record. Id.
Plaintiff Failed to Establish that the Agency’s Delay Caused the Solicitation Requirements
to Become Unduly Restrictive in Violation of CICA

         Plaintiff contends that the Agency violated CICA citing “two primary defects” in the
solicitation -- the combination of Type III and Type IV services and the 60-day operational
readiness requirement -- which, “in combination with Agency delays, unduly restrict
competition.” Pl. Mot. for Judgment on the AR 25. Draken acknowledges that “[w]hile the
[s]olicitation requirements initially appeared difficult but reasonable” based on the Agency’s
“promised” award timeline, “they are no longer reasonable now that the Agency has decided to
extend the timeframe for making an award by up to five times its original estimate.” Id. at 15
(emphasis in original). Thus, in Plaintiff’s view, while the solicitation did not contain anti-
competitive terms at the time of proposal submission, the subsequent delay in the procurement
process rendered these terms anti-competitive.

Plaintiff’s Challenge to the Solicitation Terms is Untimely

        To the extent that Plaintiff argues that the solicitation’s requirements for operational
readiness and both Type III and Type IV aircraft unduly restrict competition, such an argument is
untimely. As the Federal Circuit held in Blue & Gold Fleet, L.P. v. United States, “a party who
has the opportunity to object to the terms of a government solicitation containing a patent error
and fails to do so prior to the close of the bidding process waives its ability to raise the same
objection subsequently in a bid protest action in the Court of Federal Claims.” 492 F.3d 1308,
1313 (Fed. Cir. 2007). “[W]here there is a ‘deficiency or problem in a solicitation . . . the proper
procedure for the offeror to follow is not to wait to see if it is the successful offeror before
deciding whether to challenge the procurement, but rather to raise the objection in a timely
fashion.’” Id. at 1314 (alteration in original) (citing N.C. Div. of Servs. for the Blind v. United
States, 53 Fed. Cl. 147, 165 (2002); see also Argencord Mach. & Equip., Inc. v. United States,
68 Fed. Cl. 167, 175 n.14 (2005); MVM, Inc. v. United States, 46 Fed. Cl. 126, 130 (2000);


8
        ATAC relies upon documents that are not part of the AR. Pursuant to Rule 52.1, the
Court has not considered these documents. See Intervenor Br. 6 n. 1-2, 7 n. 3, 8 n. 4-5, 9 n. 6-8,
10 n. 9, 31 n. 18-19.
                                                10
Allied Tech. Group, Inc. v. United States, 39 Fed. Cl. 125, 146 (1997); Aerolease Long Beach v.
United States, 31 Fed. Cl. 342, 358 (1994)).

Plaintiff’s Claim of Undue Procurement Delay is Timely and Reviewable

        While Blue & Gold prevents Plaintiff from challenging solicitation terms, it does not
prevent Draken from protesting alleged pre-award deficiencies in the procurement process. The
delay that Draken argues has made the procurement process anti-competitive was not a term of
the solicitation. There was no basis on the face of the solicitation for Plaintiff to challenge what
later became, in its view, an unduly lengthy procurement process. The solicitation stated that the
“anticipated” award date was March 1, 2014, information that was to be used by bidders as “a
basis for schedules and burden (labor, overheads, G&A, etc.) mid-point calculations.” AR 586.
Plaintiff does not contend that this solicitation term was defective, only that the Agency’s
subsequent departure from that anticipated date rendered the procurement anti-competitive. As
Draken is not challenging a solicitation term, but instead the combination of delay in the
procurement process with requirements that allegedly became unduly restrictive due to this
delay, Draken’s protest is timely under Blue & Gold.

Plaintiff Has Not Established a Violation of CICA

        The plaintiff in a bid protest bears the burden of proving that a “clear and prejudicial”
error marred the procurement in question. CACI Field Servs., Inc. v. United States, 854 F.2d
464, 466 (Fed. Cir. 1988) (quoting Kinetic Structures Corp. v. United States, 6 Cl.Ct. 387, 394
(1984); DeMat Air, Inc. v. United States, 2 Cl.Ct. 197, 202 (1983)). Plaintiff contends that the
Agency’s delay in the procurement process coupled with the solicitation requirements for Type
III and Type IV aircraft and operational readiness caused offerors “to bear expenses five times
longer than forecast” and violated CICA. Pl. Mot. for Judgment on the AR 25.

       Plaintiff presents no authority to support the proposition that it is a violation of CICA for
an agency to delay an award, causing “difficult but reasonable” solicitation requirements to
become unduly restrictive of competition due to the passage of time. CICA requires procuring
agencies to “obtain full and open competition through the use of competitive procedures in
accordance with the requirements of this division [41 U.S.C. §§ 3301 et seq.] and the Federal
Acquisition Regulation” and to “use the competitive procedure or combination of competitive
procedures,” such as sealed bids “that is best suited under the circumstances of the procurement.”
41 U.S.C. § 3301 (2012).

        Plaintiff has not demonstrated that the procedures NAVAIR used in the instant negotiated
procurement – which still has [***] offerors – were anti-competitive or violated any statutory or
FAR provision. Plaintiff does not allege a failure of the Agency to use an identified competitive
procedure required by CICA and the FAR. Rather, Plaintiff persists in attempting to raise an
untimely challenge to the facial terms of the solicitation, by protesting the delay in the
procurement process. While CICA sets forth procedures for the Government to sustain a policy
of full and open competition, the statute does not mandate that a procurement take place in a
certain amount of time or expressly provide that any delay, let alone reasonable, justified delay,
is prohibited. While Plaintiff suggests that it may have to drop out of the competition because it

                                                11
can no longer provide Type IV aircraft, it has not yet withdrawn and there is no evidence that the
other [***] offerors cannot meet the Type IV requirement or are planning to withdraw. Indeed,
Plaintiff requests alternative relief that suggests that it could remain in the competition -- that the
Agency “allow all offerors, including Draken, a reasonable opportunity to offer new aircraft in
the event that aircraft that were originally proposed are no longer available due to the delays in
the procurement process.” Am. Compl. at 26. Plaintiff has not established that the restrictive
solicitation terms and delay caused a reduction in competition that rises to the level of a violation
of CICA.

        Plaintiff further argues that the Agency violated § 3306(a)(2)(B) of CICA which provides
that agencies may “include restrictive provisions or conditions only to the extent necessary to
satisfy the needs of the executive agency or as authorized by law.” 41 U.S.C. § 3306(a)(2)(B)
(2012). Plaintiff identifies the Agency’s “restrictive provision” here as the solicitation’s
requirements for both Type III and Type IV aircraft and for operational readiness coupled with
the delay in conduct of the procurement. However, Plaintiff cannot establish restrictive
solicitation provisions here because its challenge to these solicitation terms is untimely. Plaintiff
admits that these solicitation provisions were not restrictive at the time it submitted its offer. In
plaintiff’s view, what made the provisions restrictive under CICA was the length of time the
procurement took. But, as Plaintiff admits, this delay did not result from any fault of the Agency
-- either arbitrary and capricious conduct or a separate statutory or regulatory violation. The
original solicitation had an anticipated award date of March 1, 2014. AR at 586. In Amendment
6, due to the Air USA protest and the change in the proposal submission date, the Agency moved
the anticipated award date to April 1, 2014. The Agency did not make an award on April 1,
2014, but continues to engage in discussions with offerors and now anticipates awarding the
contract in February 2015. Decl. of Phillip Smith ¶ 9. These delays have been caused by
legitimate, unremarkable procurement occurrences -- pre-award agency-level and GAO protests
by Air USA and Draken, and the Agency’s need to evaluate offerors’ responses to 107 ENs and
conduct discussions. See id. at ¶¶ 7-9.

         Plaintiff purports to combine two agency actions, neither of which was independently
illegal, to construct a violation of procurement law. But Plaintiff’s invocation of procurement
delay does not either convert what were legal solicitation terms into illegal terms, or grant
Plaintiff a reprieve for its untimely challenge to solicitation terms. If this Court permitted
Plaintiff to pursue an untimely challenge to solicitation terms and ordered the Agency to revise
the belatedly challenged solicitation terms merely because there was subsequent legitimate
procurement delay, the Court would do violence to Blue & Gold.

        In addition to failing to demonstrate that this procurement delay created the type of
“restrictive solicitation provisions” prohibited by CICA, Plaintiff has failed to appreciate that the
Agency amply justified these challenged solicitation terms. The no-fault delay that ensued did
not vitiate that Justification. The Assistant Secretary’s Determination and Findings articulated
rational reasons for including the Type IV supersonic aircraft along with the Type III subsonic
aircraft in this procurement:




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              The efficiencies gained by having a single provider provide all resources at all
               sites as compared to having two contractors at each location using additional
               space, tooling, and personnel.

              The ability to fulfill Type III missions with Type IV aircraft billed at the lower
               Type III rate, which allowed the Government “to minimize the required quantity
               of high subsonic aircraft without compromising the ability to cover surge
               requirements.”

              The avoidance of a scenario where two contractors would use overlapping
               resources, which would cause logistical difficulties, reduce the funds available for
               training and decrease the quality of training provided.

              The recognition that the task orders under the contract are so integrally related
               that only a single source could reasonably perform the effort.

              The avoidance of duplication of costs to provide and maintain multiple fleets of
               aircraft.

AR 4470-71.

        It is well settled that an agency has discretion in defining its needs. See Che Consulting,
Inc. v. United States, 74 Fed. Cl. 742, 747 (2006) (“An agency’s determination of the ‘best
method of accommodating’ its needs . . . falls within the agency's discretion.” (quoting United
Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)). This Court would be hard pressed
to force the Agency to redefine its needs here because such needs have allegedly become
unjustified due to delay that did not result from any procurement error or irrational agency
decision.

        This is not to say that an agency’s procurement delay is either a matter of unfettered
agency discretion or immune from judicial review. The Government submits that procurement
delay is purely a matter of procedure that has no effect on the validity of the procurement and
does not alone provide a basis to protest. Def. Cross-Mot. for Judgment on the AR 18 (citing
Am. Fuel Cell and Coated Fabrics Co., B-234395, Feb. 21, 1989, 89-1 CPD ¶ 183 (holding that a
contractor’s protest of an agency’s delay in making an award had no merit because “a delay in
meeting procurement milestones is a procedural deficiency which does not alone provide a basis
of protest, because it has no effect on the validity of the procurement”). This Court does not
agree. Rather, an agency’s illegal, irrational, or arbitrary delay could provide both a basis for
protest and relief. An agency has an obligation of good faith and fair dealing to bidders
participating in Federal procurements, and that duty would prohibit an agency from arbitrarily
unduly delaying a procurement by stringing offerors along, requiring them to be at the ready at
substantial expense for an unnecessarily extended period. See generally Heyer Prod. Co. v.
United States, 135 Ct. Cl. 63, 71 (1956). However, this is not the argument Plaintiff is pressing
in this case. Plaintiff emphasizes that it is not claiming that the procurement delay here resulted
from any arbitrary, capricious, or irrational conduct by the Agency. Dec. 8, 2014 Oral Arg. Tr.


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13:13-21. (“[W]e are not ascribing fault to the agency for the delays. [. . .] And it's not necessary,
in our view, to say that the delays were the agency’s fault.”).

Draken’s Contention That It Was Treated Differently Than Other Offerors is Unripe

       Draken argues that the Agency treated it unfairly because the Agency repeatedly stressed
the importance of providing airworthiness data with the initial proposals, yet “appears to have
waived the requirement eight months after offerors were required to comply” for [***] and
[***]. Pl. Mot. for Judgment on the AR 32-35 (emphasis in original). Plaintiff speculates that
the Agency may accept this data from other offerors, will rely on this data, and will not afford
Draken a similar opportunity to provide such data. Id. at 34-35.

        ATAC submits that Draken’s arguments that it was treated unfairly and prejudicially are
not ripe because the award has not yet been made. Intervenor’s Mot. for Judgment on the AR at
34-35. The Court agrees with ATAC. This procurement is still ongoing, and the current state of
evaluations and discussions is unknown. Ripeness is a doctrine of justiciability that prevents the
courts, “through avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies . . . .” Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967). A claim is not ripe for judicial review when it is contingent upon future events that may
or may not occur. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985). In
assessing ripeness, there are two basic factors: “‘(1) the fitness of the issues for judicial
decision[;] and (2) the hardship to the parties of withholding court consideration.’” Sys.
Application & Techs. v. United States, 691 F.3d 1374, 1383-1384 (Fed. Cir. 2012) (quoting
Abbott Labs., 387 U.S. at 149); Tex. Bio- & Agro-Def. Consortium v. United States, 87 Fed. Cl.
798, 804 (Fed. Cl. 2009). In order to be a final decision, and therefore ripe for judicial review,
(1) there must be an agency action that marks “‘the consummation of the agency's
decisionmaking process,’ i.e., it must not be merely tentative or interlocutory, and (2) ‘the action
must be one by which rights or obligations have been determined, or from which legal
consequences will flow.’” NSK, Ltd. v. United States, 510 F.3d 1375, 1385 (Fed. Cir. 2007)
(quoting Bennett v. Spear, 520 U.S. 154, 177 (1997)).

        Here, whether Draken will be treated unfairly and prejudicially compared to [***] and
[***] is not yet known and cannot be ascertained until the Agency selects an awardee. In Texas
Bio- & Agro-Defense Consortium, this Court recognized that a proposed site selection was not
ripe for judicial review because negotiations over the transfer of the property to the agency had
not been concluded and because any transfer of the property was contingent upon Congressional
funding. 87 Fed. Cl. at 804-06. This Court reasoned that given the uncertainty over what form
the potential transfer of land and in-kind contributions from the Intervenor to the agency might
take and the multiple potential contingencies, the site selection was not fit for judicial review.
Id. at 806. Similarly, in the instant case, the outcome of what Draken claims is an unfair
evaluation process has not yet occurred, as the Agency is still in the pre-award evaluation stage
of this procurement. Decl. of Philip Smith ¶¶ 4-5. The “consummation of the agency’s
decisionmaking process” will not occur until award. See NSK, Ltd., 510 F.3d at 1385.

      Deciding not to review this alleged unequal treatment does not impose any hardship on
Draken. “[W]ithholding court consideration of an action causes hardship to the plaintiff where

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the complained-of conduct has an ‘immediate and substantial impact’ on the plaintiff.” Caraco
Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1295 (Fed. Cir. 2008) (quoting Gardner
v. Toilet Goods Ass’n, 387 U.S. 167,171 (1967)); Texas Bio- & Agro-Defense Consortium, 87
Fed. Cl. at 806. Withholding consideration of this issue will not harm Draken, as the conduct
that it complains of may not ultimately persist or prejudice Draken.

This Court Will Not Review the Agency’s Denial of Draken’s Agency-Level Protest
        Draken argues the Agency’s protest decision was irrational and that the Agency “failed to
provide a coherent and reasonable explanation that justified its decision to deny Draken’s
protest.” Pl. Mot. for Judgment on the AR 30-33. In the bid protest realm, the Court of Federal
Claims is not an appellate tribunal empowered to directly review protest decisions of the agency
or the GAO. Cf. Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989); MG
Altus Apache Co. v. United States, 111 Fed. Cl. 425, 443 (Fed. Cl. 2013) (“While this Court
lacks jurisdiction to review a GAO decision outright, it may assess whether the GAO decision
was rational in order to determine whether the procurement action being challenged — the
agency’s corrective action predicated on that GAO decision — was reasonable.”) (citing
Honeywell, Inc., 870 F.2d at 647-648).

         Under § 1491(b)(1), the Court has jurisdiction in bid protest cases “to render judgment on
an action by an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. 1491(b)(1) (2012). An agency protest is not a procurement. Thus,
while Draken may disagree with the agency’s denial of its protest, the Court does not have
jurisdiction to review or remand the agency’s protest decision, but instead reviews the agency’s
underlying procurement decision or procurement-related actions. In any event, Plaintiff’s
challenge to the Agency’s protest decision here simply rehashes the grounds of protest it pursued
in this forum -- which this Court rejected without evaluating the agency protest decision.

                                               Conclusion

        The Court DENIES Plaintiff’s motion for judgment on the Administrative Record and
Plaintiff’s motion for injunctive relief.

        The Court GRANTS Defendant’s motion for judgment on the Administrative Record and
Intervenor’s motion for judgment on the Administrative Record. The Court directs the Clerk to
enter judgment accordingly.

                                             s/Mary Ellen Coster Williams
                                             MARY ELLEN COSTER WILLIAMS
                                             Judge




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