      In the United States Court of Federal Claims
                                   No. 15-1541C
                        (Filed under seal December 2, 2016)
                           (Reissued December 13, 2016)†

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
TELOS CORPORATION,                *           RCFC 62(c) motion for injunction
                                  *           pending appeal; unsuccessful bid
                 Plaintiff,       *           protest; APA review standard;
                                  *           Federal Supply Schedule, FAR
      v.                          *           subpart 8.4; streamlined process;
                                  *           no substantial case on the merits.
THE UNITED STATES,                *
                                  *
                 Defendant,       *
                                  *
      and,                        *
                                  *
NETCENTRICS CORPORATION, *
                                  *
           Defendant-Intervenor.  *
                                  *
* * * * * * * * * * * * * * * * * *

       Nathanael D. Hartland, Miles & Stockbridge P.C., with whom were Joseph G.
Billings, Katherine B. Burrows, Michael E. Samuels, and Jeremy S. Scholtes, all of
Baltimore, Maryland, for plaintiff.

       Corinne A. Niosi, Commercial Litigation Branch, Civil Division, Department
of Justice, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle,
Assistant Director, all of Washington, D.C., for defendant. Major M. Aaron Lee,
U.S. Army Legal Services Agency, Contract and Fiscal Law Division, Fort Belvoir,


† The parties joined in a request to redact information from this order. As
requested, the identity of a specific feature proposed by intervenor, and specific
financial information of plaintiff, are redacted. More general statements from a
proposal or evaluation will not be redacted, nor will a description of the experience
of an unnamed individual, as these are not competition-sensitive.
Virginia, and Scott A. Johnson, Army Materiel Command Legal Center, Rock Island
Arsenal, Illinois, of counsel.

     Jeremy W. Dutra, Squire Patton Boggs (US) LLP, with whom were Karen R.
Harbaugh and John R. Sharp, all of Washington, D.C., for defendant-intervenor.



                                       ORDER

      A short time after the Court announced an oral ruling concerning plaintiff
Telos Corporation’s bid protest, and issued an order denying Telos’s motion for
judgment and request for injunctive relief, Telos filed a motion under Rule 62(c) of
the Rules of the United States Court of Federal Claims (RCFC). Telos sought an
injunction pending the appeal of the order denying the earlier-requested injunction.
The injunction pending appeal was not granted. The reasons set forth below
explain why the RCFC 62(c) motion is denied.

       Under RCFC 62(c), “[w]hile an appeal is pending from an interlocutory order
or final judgment that grants, dissolves, or denies an injunction, the court may
suspend, modify, restore, or grant an injunction on terms for bond or other terms
that secure the opposing party’s rights.” RCFC 62(c). This type of injunction has
been characterized as “an extraordinary and drastic remedy,” Akima Intra-Data,
LLC v. United States, 120 Fed. Cl. 25, 27 (2015), which accordingly “will not be
lightly granted,” RLB Contracting, Inc. v. United States, 120 Fed. Cl. 681, 682
(2015) (citation omitted). Indeed, the Court is not aware of a single instance in
which an RCFC 62(c) injunction has been issued.

      The moving party carries the burden of establishing the propriety of an
injunction pending appeal, which is based on the consideration of four factors:

      (1) whether the movant has made a strong showing that it is likely to
      succeed on the merits; (2) whether the movant will be irreparably
      injured absent an injunction; (3) whether issuance of the injunction
      will substantially injure the other interested parties; and (4) where the
      public interest lies.

Akima Intra-Data, 120 Fed. Cl. at 27–28 (citing Standard Havens Prods., Inc. v.
Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990)); see also RLB Contracting,
120 Fed. Cl. at 682. Following the Federal Circuit’s approach to stays pending
appeal, opinions from our court have recognized a flexible application of these
factors. Thus, an injunction is possible even when success on the merits is not
probable, but this requires a “substantial case on the merits,” Akima Intra-Data,
120 Fed. Cl. at 28 (quoting Standard Havens Prods., 897 F.2d at 513), and “the
other factors must tilt ‘decidedly toward plaintiff,’” RLB Contracting, 120 Fed. Cl. at
682 (citing same).

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       Concerning the first injunctive relief factor, plaintiff argued that there is a
strong likelihood that the Federal Circuit will rule in its favor or that, at a
minimum, it has a substantial case on the merits of its appeal. Pl.’s Mot. for Inj.
Pending Appeal (Pl.’s Mot.) at 1. In support, Telos raised four grounds. Id. As
should be expected, the Court does not find it likely that the Federal Circuit will
rule in plaintiff ’s favor on any of these grounds, for plaintiff would have prevailed
here were that the case. 1 Nor is the Court persuaded that Telos has a substantial
case on these grounds for appeal, even were the other factors to tilt decidedly in its
favor --- and they do not.

       First, plaintiff contended that the Court did not properly apply the
Administrative Procedure Act’s (APA) “coherent and reasonable explanation”
standard. Id. at 6 (citing Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,
1381 (Fed. Cir. 2009) & 5 U.S.C. § 706). Specifically, Telos contended (incorrectly)
that the agency has the burden to demonstrate by a preponderance of the evidence
that a rational basis for its decision exists, 2 and that here the agency failed to
explain why it did not find certain aspects of Telos’s proposal to be significant
strengths. 3 Id. at 4–6. Telos argued that the Court impermissibly allowed the

1 The Court supposes that one circumstance in which a trial judge would rule
contrary to the likely outcome from a court of appeal would be the rare occasion in
which an en banc decision was anticipated to overrule an obviously flawed (yet still
binding) panel opinion.
2 Telos got this incorrect notion of a burden falling on the government from dicta in
the standard of review portion of an opinion by the undersigned. See Pl.’s Mot. at 6
(quoting Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 244 (2011)). This dicta
originated in an opinion that had been issued in July, 2004, see Gulf Group Inc. v.
United States, 61 Fed. Cl. 338, 351 (2004), and reflected the application of summary
judgment principles in administrative record proceedings. More than nine months
later, the Federal Circuit definitively concluded that summary judgment principles
do not apply in these proceedings, see Bannum, Inc. v. United States, 404 F.3d 1346,
1354–57 (Fed. Cir. 2005), and thus only plaintiffs bear a burden of proof in bid
protests. The Court appreciates the opportunity to clarify this matter, and regrets
that any parties may have been led astray by this outdated and erroneous dicta.

3 In the complaint, Telos alleged that it did not receive “numerous ‘Significant
Strengths’ and ‘Strengths’” that it deserved under both the Technical and
Management evaluation factors. Compl. ¶¶ 211–349. Likewise, in its motion for
judgment on the administrative record, Telos argued that the agency’s evaluation
was “unreasonable because it failed to recognize numerous significant strengths (or,
in the alternative, strengths),” citing seventy-six aspects of its proposal that it
contends the agency should have found to be significant strengths under the
Technical and Management factors. Pl.’s Mot. J. Admin. R. at 23–33.


                                         -3-
streamlined approach to acquisitions under the Federal Supply Schedule (FSS)
program, subpart 8.4 of the Federal Acquisition Regulation (FAR) --- and, in
particular, the limited amount of required documentation, 48 C.F.R. § 8.405-2(f) ---
to lower the review standard below what the APA requires. Pl.’s Mot. at 4–10.
Plaintiff contended that the Court’s approach is “inconsistent with” Citizens to
Preserve Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 420 (1971), which
recognized that a court may require challenged decisions to be further explained,
and Axiom Resource Management, Inc. v. United States, 564 F.3d 1374, 1380 (Fed.
Cir. 2009), which noted that a contemporaneous record could be supplemented with
additional evidence, Pl.’s Mot. at 5.

       In this argument, Telos has things backwards. In a post-award bid protest,
the agency decision being reviewed under the APA standard is the award decision.
See 28 U.S.C. § 1491(b)(1), (4). When an agency selects one offer among many, that
exercise of discretion is scrutinized to ensure that the agency “considered the
relevant factors and articulated a rational connection between the facts found and
the choice made.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87,
105 (1983) (citation omitted); see Beta Analytics Int’l, Inc. v. United States, 67 Fed.
Cl. 384, 396 (2005). The selection decision explained why intervenor’s quote was
found superior to plaintiff ’s quote, Admin. R. (AR) at 1226–27, and relied upon
evaluation reports that explained the findings of strengths and significant
strengths, see AR at 1010–12, 1056–57. These and the other evaluation documents
are subject to review to verify “that objective elements contained in the agency’s
analysis, such as the description of the offeror’s narrative, correspond to the
evidence in the record” and “to see if subjective judgments are reached elsewhere in
the analysis that contradict the evaluators’ conclusions,” USfalcon, Inc. v. United
States, 92 Fed. Cl. 436, 462 (2010) (citations omitted). In this case, the selection
decision was found to be rational, and not undermined by any objective errors or
subjective inconsistencies.

       A statute or regulation could impose specific factors that an agency must
consider in making a decision, or specific duties associated with the decision, which
will affect the review process. The Supreme Court considered one such situation in
Overton Park, where the Secretary of Transportation was required to make certain
findings, see 401 U.S. at 404, 408, and the responsibility determinations required by
the FAR are another, see Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1339 (Fed. Cir. 2001). To these considerations, of course, are
added the evaluation factors and criteria announced by an agency. See, e.g., 48
C.F.R. §§ 8.405-2(d), 15.304(d). For negotiated procurements, the FAR requires a
certain level of documented analysis of “relative strengths, deficiencies, significant
weaknesses, and risks,” 48 C.F.R. § 15.305(a), including technical assessments and
summaries, id. § 15.305(a)(3), which may be mined by protesters for prejudicial
errors or inconsistencies. Far less is required in FSS purchases. See 48 C.F.R.
§ 8.405-3(d), (f). Telos’s position is that a protester can unilaterally impose upon an
agency the duty to explain why any feature in its proposal was not found to be a

                                         -4-
strength, merely by disputing this determination. Such a concept is unprecedented,
because it would shift the focus of bid protests far from the review of the actual
procurement decision and, hence, depart from the APA review standard.

       This is not to say that the failure to assign a strength may not be challenged
as inconsistent with the treatment of an identical aspect of a competitor’s proposal,
or that approaches found adequate in a winning offeror’s proposal may not be
challenged as objectively deficient or inconsistently evaluated. But the notion that
when an agency finds aspects of a protester’s proposal to be adequate, and thus not
material to the best value determination, each adequacy determination must
nevertheless be explained for the award decision to be rational, has no basis in law
or reason. Such an approach is not even required in non-FSS, negotiated
procurements. See InSpace 21 LLC v. United States, 128 Fed. Cl. 69, 89 (2016). In
sum, the decision that must be reasonably articulated and supported in a post-
award bid protest is the selection of the awardee, not every “decision” that a
proposed feature is unremarkable, and plaintiff has failed to make a substantial
case for the latter proposition.

       Telos’s second merits-related argument concerned allegations of unequal
treatment. Pl.’s Mot. at 10–12. The Court finds the three examples provided by
plaintiff to be no more persuasive the second time around. Plaintiff first contended
that intervenor NetCentrics Corp. received a significant strength under the
Technical factor based on its experience, while the agency did not assign any
significant strengths to Telos based on its incumbent experience. Id. at 10–11. This
argument mainly rests on a mischaracterization of the significant strength given to
the intervenor, 4 and in any event the record shows no inconsistency in the agency’s
evaluations. The Technical and Management evaluations were not based strictly on
an offeror’s experience --- what it had done --- but did reflect experience, when
relevant to an offeror’s understanding of requirements and demonstrated approach
to meeting them. Telos similarly received a strength based on the proposed
application of its experience. AR at 1057 (task 1, subtask 6). Next, Telos argued
that its incumbency should have merited it a higher rating for transition than
NetCentrics received. Pl.’s Mot. at 11. But Telos admitted in its proposal that
“[e]ven when an incumbent contractor is awarded the task there are risks
associated with every transition,” AR at 943, and one element of the Transition Plan

4 The significant strength in question was not given because a proposed subject
matter expert of NetCentrics had experience he could use to bring other employees
“up to speed.” See AR at 1010–11. That language was merely part of a larger
quotation from intervenor’s proposal, explaining its proposed use of “[XXXX]”
([XXXX]). Id. The significant strength was based on intervenor’s “excellent
understanding of the criticality to monitoring performance with [XXXX]” and the
resulting demonstration that it “can significantly reduce risk in [XXXX] and [XXXX]
for the Government, conveying to the Government an appreciably increased
probability of successful contract performance.” Id. at 1011.
                                         -5-
subfactor was the “Transition-Out Plan” at the new contract’s end, AR at 552–53.
Thus, it is not inherently unreasonable for an incumbent’s transition plan to be
found no more than adequate. Plaintiff ’s final example, Pl.’s Mot. at 12, amounts to
the quibble that the assessment of the intervenor’s quality control plan used the
words “consistent performance metrics” in place of the phrase “performance
standards and metrics that align with” requirements, from the first criterion for
that subfactor, see AR at 1014, 1016. In any event, NetCentrics received the
identical treatment as plaintiff under this subfactor, as it, too, had a strength
downgraded to a finding of adequacy regarding the plan’s “alignment.” See AR at
1120, 1127. These examples do not make a substantial case for a finding of unequal
treatment.

       Plaintiff ’s third merits-related argument concerned whether the experience
described for the intervenor’s proposed Automated Message Handling System
(AMHS) subject matter expert was sufficient to satisfy the qualifications for the
position. Telos maintained that an individual cannot have “direct experience with
enterprise clustered AMHS” and “prove technical ability in the architecture,
deployment, and sustainment of ” certain AMHS platforms, without being
personally responsible for the architecture and deployment of such a system. Pl.’s
Mot. at 12–13 (quoting AR at 483). The agency felt otherwise, as the proposed
expert detailed “8 years’ experience with the Telos AMHS platform and supporting
software/hardware” --- including having “[w]orked with Telos employees to design
and implement the approach and deployment of the first AMHS system with EMC
AutoStart” and “to understand the inner workings of the AMHS program.” AR at
731. Plaintiff has not made a substantial case that the agency unreasonably found
that such experience satisfied the required “direct experience” and “technical ability
in the architecture, deployment and sustainment” of such AMHS platforms.

        Plaintiff ’s final merits-based argument was that the agency did not
adequately explain why it believed that NetCentrics proposed sufficient staffing to
perform the contract requirements, given the agency’s responsibility under FAR
section 8.405-2(d) “for considering the level of effort and the mix of labor proposed to
perform a specific task being ordered.” See Pl.’s Mot. at 15–18. The record shows
that the agency evaluators did consider these matters, however, as they specifically
found that the intervenor “proposed adequate labor categories and labor mix to
satisfy program requirements.” AR at 1015. Telos, relying on a Government
Accountability Office (GAO) opinion that was not cited in its briefs on the merits,
see Tr. (Feb. 24, 2016) at 48, argued that the agency should have explained why the
staffing was found adequate for each task to be performed under the contract, Pl.’s
Mot. at 15–18 (citing Advanced Tech. Sys., Inc., B-296493.6, 2006 CPD ¶ 151, 2006
U.S. Comp. Gen. LEXIS 164, at *18–22 (Oct. 6, 2006)). But the FAR does not
require such a discussion, see 48 C.F.R. § 8.405-2(d), which would be inconsistent
with the streamlined FSS process and contrary to the documentation requirement,
see id. § 8.405-2(f). Moreover, the Court is not persuaded that the GAO opinion
Telos relies upon --- which concerned a procurement in which labor effort was

                                          -6-
proposed in the aggregate by Contract Line Item Number (CLIN) and an offeror
which had inexplicably cut its proposed effort by more than half, see Advanced Tech.
Sys., 2006 U.S. Comp. Gen. LEXIS 164, at *16 & n.10, *21 --- has any relevance to
this case. Here, although organized by CLIN, NetCentrics expressed its proposed
staffing by specific task, see AR at 716–19, so when the evaluators were
“considering the level of effort and the mix of labor proposed,” this necessarily
encompassed the specific tasks. Telos has failed to make a substantial case on this
point.

       Although the foregoing discussion demonstrates that Telos’s motion cannot
be granted, the Court will briefly address the other injunctive relief factors. Telos
claimed that it would suffer irreparable injury in the form of lost profits, loss of
proprietary information, an adverse impact on Telos and its employees, and “dire
consequences” for its small business subcontractors. Pl.’s Mot. at 18–20. But these
are the unavoidable results of its contract coming to an end. A bid protester who
has lost its protest on the merits must show more than this to satisfy the
irreparable harm factor, such as the prospect “that it will be put out of business.”
Akima Intra-Data, 120 Fed. Cl. at 28–29; cf. Standard Havens Prods., 897 F.3d at
515 (finding appellant was “likely to suffer irreparable harm” such as “immediate
insolvency, and, possibly, extinction”). For these purposes, a [less than ten] percent
reduction in revenue is not enough.

        The third factor concerns whether a requested injunction would substantially
injure the other parties. As Telos’s bridge contract was significantly more expensive
than the contract awarded to NetCentrics, the government would have spent an
additional $1.42 million per month for these services had an injunction issued.
Def.’s Opp. to Pl.’s Mot. at 21 (citing Carrington Decl., App. at 2, ¶ 7). The
intervenor would have suffered a further delay in performing and profiting from its
contract, despite the award decision having been upheld by both the GAO and this
court. Under these circumstances, the injuries to the defendant and the intervenor
would be no less substantial than those claimed by Telos, and could not decidedly
tip in favor of the plaintiff.

      Plaintiff ’s argument that the public interest would be served by an injunction
rested solely upon its claim that the contract was improperly awarded. Pl.’s Mot. at
25–26. But the contract award was found to be lawful, and thus the public interest
would not be furthered by an injunction. See RLB Contracting, 120 Fed. Cl. at 683
n.2.

      For the reasons stated above, plaintiff ’s motion for an injunction pending
appeal is DENIED.




                                         -7-
IT IS SO ORDERED.


                    s/ Victor J. Wolski
                    VICTOR J. WOLSKI
                    Judge




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