         In the United States Court of Federal Claims
                                      No. 18-670C
                             (Filed: November 20, 2018)*
              *Opinion originally filed under seal on November 15, 2018


                                          )
 OST, INC.,                               )
                                          )
                     Plaintiff,           )      Bid Protest; Jurisdiction; Motion to
                                          )      Dismiss; Federal Acquisition
 v.                                       )      Streamlining Act of 1994 (FASA), 10
                                          )      U.S.C. § 4106(f)(1); Bad Faith.
 THE UNITED STATES,                       )
                                          )
                     Defendant.           )
                                          )

Thomas A. Coulter, Richmond, VA, for plaintiff. Nicole Hardin Brakstad, Richmond,
VA, of counsel.

Joshua Kurland, Civil Division, United States Department of Justice, Washington, D.C.,
with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E.
Kirshman, Jr., Director, and Allison Kidd-Miller, Assistant Director, for defendant.
Whitney Michak, Attorney Advisor, Office of General Counsel, Defense Health Agency,
Aurora, Colorado, of counsel.

                                       OPINION

FIRESTONE, Senior Judge

      Pending before the court in this bid protest is plaintiff Optimal Solutions and

Technologies, Inc.’s (“OST”) motion for judgment on the administrative record together

with the defendant’s (“the government”) motion to dismiss pursuant to Rule 12(b)(1) of

the Rules of the United States Court of Federal Claims (“RCFC”) and its cross-motion for

judgment on the administrative record. At issue is the Defense Health Agency’s
(“DHA”) decision to issue a task order under the General Service Administration’s

(“GSA”) Alliant Government Wide Acquisition Contract (“Alliant GWAC”) for IT

services in connection with DHA’s E-Commerce Operations Systems Support (“EOSS”)

program. The EOSS allows DHA to process claims for its 9.4 million beneficiaries.

OST had been providing those IT services for DHA’s EOSS under a different DHA

contract vehicle, the Chief Information Officer-Solutions and Partners 3 (“CIO-SP3”)

GWAC. OST’s CIO-SP3 contract expired on July 13, 2018. The contract, however,

contained four option years which DHA elected not to exercise.

      OST initially filed a motion for a preliminary injunction on May 10, 2018, arguing

that DHA’s decision to procure IT services through a task order under the Alliant GWAC

contract vehicle rather than exercise an option under OST’s contract was made in bad

faith and was contrary to law. (ECF No. 5). The government filed a response and a

partial motion to dismiss, addressing OST’s claim in two parts. First, the government

argued that the portion of OST’s claim concerning DHA’s decision not to exercise OST’s

option needed to be dismissed because the claim had to be resolved under the procedures

set forth in the Contract Disputes Act (“CDA”), 41 U.S.C. § 701 et seq. Second, the

government argued, with regard to OST’s claim that DHA’s decision to use the Alliant

GWAC was made in bad faith, that DHA’s decision to issue a task order under the

Alliant GWAC was required under DHA’s Procurement of Health Information

Technology Products and Services policy (“DHA policy”) and therefore had not been

made in bad faith. Under the DHA policy “if a service can be acquired by using GSA’s




                                           2
Alliant GWAC or Alliant Small Business GWAC, then those vehicles shall be used to

procure the service.” AR 1 (emphasis added).

       On June 22, 2018, the court denied OST’s motion for preliminary injunctive relief

and granted the government’s partial motion to dismiss. The court agreed with the

government that decisions relating to the exercise of options are matters of contract

administration governed by the CDA and outside this court’s bid protest jurisdiction. The

court also found that OST was not likely to succeed on the merits of its claim that DHA’s

decision to procure IT services under the Alliant GWAC was made in bad faith and was

arbitrary and capricious. See OST, Inc. v. United States, 2018 WL 3373023 (Fed. Cl. July

11, 2018). Thereafter, DHA issued the subject task order under the Alliant GWAC

contract.

       In its pending motion for judgment on the administrative record filed on August 3,

2018, (ECF No. 34), OST contends that DHA’s decision to use the Alliant GWAC was

done purposefully to exclude OST from competing for IT services and thus was made in

bad faith and was arbitrary and capricious. Specifically, OST argues that the DHA policy

does not mandate the use of the Alliant GWAC to procure the IT services at issue in this

case and that the administrative record shows that DHA officials specifically chose the

Alliant GWAC to keep OST from competing for the subject IT services. OST is not

eligible to compete for task orders under the Alliant GWAC because it is not a contractor

authorized to bid under the Alliant GWAC.

       The government argues in its motion to dismiss that this court lacks jurisdiction

over OST’s protest under the Federal Acquisition Streamlining Act of 1994 (“FASA”) 41


                                             3
U.S.C. § 4106(f) on the grounds that OST is challenging the issuance of a task order.

Specifically, under FASA, 41 U.S.C. § 4106(f)(1) “[a] protest is not authorized in

connection with the issuance or proposed issuance of a task or delivery order except for--

(A) a protest on the ground that the order increases the scope, period, or maximum value

of the contract under which the order is issued; or (B) a protest [involves] an order valued

in excess of $10,000,000.” The government maintains that because the Alliant GWAC

task order does not exceed the scope of the Alliant GWAC and is not valued over

$10,000,000, OST’s protest must be dismissed. The government argues, in the

alternative, that should the court conclude that it has jurisdiction over the protest, that

OST’s bad faith argument is not supported. The government contends that the decision

to issue a task order under the Alliant GWAC was required by DHA’s policy because the

IT services needed are covered by that GWAC. The government argues that where, as

here, the decision to issue a task order under the Alliant GWAC was mandatory because

the needed services could be obtained through the Alliant GWAC, DHA had to use the

Alliant GWAC and did not act in bad faith.

       For the reasons discussed below, the court finds that it does not have jurisdiction

over OST’s bid protest challenging DHA’s issuance of a task order under the Alliant

GWAC and thus the government’s motion to dismiss for lack of subject matter

jurisdiction is GRANTED.1


1
  Although the court finds that OST’s protest is outside this court’s jurisdiction as a challenge to
a task order, in the interest of judicial economy the court is also addressing the merits of
plaintiff’s arguments based on allegations of bad faith as the court indicated that it would when it
denied plaintiff’s motion for preliminary injunctive relief. As discussed infra, the court finds

                                                 4
I.     Factual Background and Procedural History2

       A.     DHA’s E-Commerce System

       TRICARE is the healthcare program of the United States Department of Defense

(“DOD”) which serves active duty and retired military personnel as well as their

dependents. AR 503. DHA is responsible for the management and operation of the

TIRCARE program to ensure that military health and private sector care services provide

service to the beneficiaries. Id. As part of the TRICARE program, beneficiaries are able

to obtain authorized care from civilian providers through Managed Care Support

Contracts (“MCSCs”) for which they are reimbursed. Id.

       In order to support this function, DHA has implemented the DHA E-Commerce

System (“ECS”), which provides an interface that supports MCSC payments and other

connected business management needs. Id. The E-Commerce Operational Systems

Support (“EOSS”) program at issue in this bid protest provides the technical support staff

for the ECS. Id. This includes the IT services needed to maintain, operate, and provide

engineering and technical support for the ECS. Id. As set forth in the solicitation “DHA

ECS applications support critical and time-sensitive financial and contract management




based on the administrative record that the plaintiff has not shown that DHA officials acted in
bad faith when they chose to secure IT services using a task order under the Alliant GWAC. The
court is not, however, entering judgment on the administrative record because jurisdiction is
lacking.
2
  Many of the background facts were included in the court’s earlier opinion denying preliminary
injunctive relief and are summarized here. See OST, Inc. v. United States, 2018 WL 3373023
(Fed. Cl. July 11, 2018).

                                              5
operations” and allow DHA to process almost 200 million claims annually for 9.4 million

beneficiaries. AR 529, 22.

       B.     OST’s Contract

       OST received a one-year contract with four one-year options in June 2017. AR

22, 137. The base year contract concluded on July 13, 2018. AR 137. OST’s contract

was procured under the National Institute of Health Information Technology Acquisition

Assessment Center (“NITAAC”) CIO-SP3 GWAC. Id. The Administrative Record

indicates that DHA was not satisfied with OST’s performance and had decided while

OST was still performing under its CIO-SP3 contract that DHA would not exercise its

option to extend OST’s contract beyond the first year. AR 137, 138, 247.

       C.     The Solicitation

       On February 21, 2018, Graham Ininns, Chief, Contract Resource Management,

Program Manager, DHA E-Commerce Systems issued a memorandum to obtain approval

to “solicit the assistance of GSA [General Services Administration] to acquire a new

[EOSS] contract utilizing the [Alliant GWAC]” for a one-year contract with four one-

year option years. AR 15. In his memorandum, Mr. Ininns noted that the current

contractor, OST, was not performing well under its contract and that because of OST’s

poor performance “[i]t is crucial that a replacement contract is put into place to preserve

the ability to provide support to manage and operate the healthcare contracts as well as

process the millions of healthcare claims that come in daily.” Id. In conjunction with

Mr. Ininns’ memorandum to GSA, Todd Young, DHA’s Contracting Officer (“CO”) on

the OST contract, issued a determination and findings (“D&F”) regarding the best


                                             6
procurement approach for the EOSS program contract. AR 22-24. In the D&F, DHA

indicated that it would be looking to award a new contract that would include a one-year

base period and four one-year options. AR 22. The D&F stated that “[t]he requirement

is within the scope of GSA’s Alliant program, and use of the Alliant program conforms

with DHA policy for Information Technology acquisitions (DHA Component

Acquisition Executive Memo: SUBJECT: Procurement of Health Information

Technology Product and Services).” AR 23. As noted, the DHA policy cited in the D&F

states, “[i]f a service can be acquired by using GSA’s Alliant GWAC or Alliant Small

Business GWAC, then one of those vehicles shall be used to procure the service.” AR 1.

Although Mr. Innins and Mr. Young initially hoped to secure the needed IT services by

having GSA conduct the procurement, GSA declined to conduct the procurement,

whereupon in early March 2018, DHA appointed its own CO, Kimberlymae Wood, to

oversee a DHA procurement under the Alliant GWAC. AR 7, 9, 15, 22-23. CO Wood

was located in a separate physical office from the individuals at DHA who were

responsible for administrating OST’s contract. AR 609.

      On March 20, 2018, CO Wood submitted an Acquisition Strategy for the IT

services needed which was approved by James D. Berns, Chief, Contracting Operations

Division-Aurora, on March 30, 2018. AR 136. In her Acquisition Strategy, CO Wood

noted under the Acquisition Requirement Section that OST “is failing to perform,

primarily because they grossly failed to accurately estimate the workload and subsequent

manning required to perform EOSS services.” AR 137. In the Acquisition Strategy, CO

Wood also explained that market research was performed to identify potential GWACs


                                            7
that could be used as the contract vehicle for the procurement. AR 140. Under the

section entitled Market Research, the Strategy document stated that “[a]fter identifying

the potential vehicles for the acquisition, it was determined the GSA Alliant Small

Business GWAC was closely aligned with the requirements of this acquisition. There are

(12) twelve small businesses on Alliant’s small business GWAC which appear capable of

performing the work.” Id. CO Wood further explained in a response to an inquiry from

an outside vendor, that as the CO, she had “determined that the GSA GWAC Alliant SB,

to be the most advantageous method of procurement.” AR 236.

       DHA posted the draft/preliminary request for proposals (“RFP”) for the task order

under the Alliant GWAC on March 21, 2018. AR 143, 146. The RFP and the

instructions to offerors explained that the acquisition was being conducted in accordance

with FAR 16.505. AR 148, 285. After a number of Alliant GWAC small business

contractors elected to opt-in to the procurement, DHA finalized the RFP and posted the

solicitation on April 16, 2018, with a proposal submission date of May 11, 2018. AR

261. In the end, the RFP sought offers for a one-year firm fixed price level of effort

(“FFLOE”) contract valued at under $10 million. AR 263, 287.3




3
  The decision to issue an RFP for only a one year task order was done in order to keep the price
of the proposed task order under the $10,000,000 threshold so that it would not be subject to a
challenge so that DHA would be able to issue a new task order before the expiration of OST’s
contract to ensure continuity of service. See AR 132-133. OST contends that the decision to
issue an RFP for only one year is evidence of bad faith on the grounds that the one-year decision
was to keep OST from protesting the task order. Pl.’s Mot. at 14, 29. The government disputes
this contention and argues that the one-year task order was designed to keep the EOSS system
operational. The merits of these contentions is discussed infra.


                                                8
       D.     Procedural History

       As discussed at the outset, OST filed its complaint with this court on May 10,

2018 challenging DHA’s decision not to exercise its option under OST’s contract but

instead to issue a request for proposals under the Alliant GWAC. On that same day OST

moved for a temporary restraining order and preliminary injunction. (ECF No. 5). As

also discussed above, the court granted the government’s partial motion to dismiss in part

holding that OST’s challenge to DHA’s failure to exercise one of the options on OST’s

contract was not cognizable under this court’s bid protest jurisdiction and had to be

resolved under the procedures set forth in the CDA. OST, Inc. v. United States, 2018 WL

3373023 (Fed. Cl. July 11, 2018). Additionally, the court denied OST’s motion for a

temporary restraining order and preliminary injunction, holding that OST was not likely

to succeed on the merits of its claim that the decision to use the Alliant GWAC was made

in bad faith. Id. The court also determined that the balance of hardship and public

interest weighed against preliminary injunctive relief. Id.

       Thereafter the Alliant GWAC task order was issued. OST moved for judgment on

the administrative record on August 3, 2018. (ECF No. 34). The government moved to

dismiss OST’s case and cross-moved for judgment on the administrative record. (ECF

No. 37). The court held oral argument on November 8, 2018.




                                             9
II.    DISCUSSION

       A.     The Court Does Not Have Jurisdiction Over DHA’s Decision To
              Obtain IT Services Using A Task Order Under The Alliant GWAC

       The United States Court of Federal Claims has “jurisdiction 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 statue or regulation in connection with a procurement or a

proposed procurement.” 28 U.S.C. § 1491(b)(1). However, the court’s bid protest

jurisdiction is not unlimited and under FASA, 41 U.S.C. § 4106(f)(1), this court does not

have jurisdiction to hear protests “in connection with the issuance or proposed issuance

of a task order, except for (A) a protest on the grounds that the order increases the scope,

period, or maximum value of the contract under which the order is issued; or (B) a protest

of an order valued in excess of $10,000,000.” 41 U.S.C. § 4106(f)(1). The limits of this

court’s jurisdiction based on FASA have been explained by the United States Court of

Appeals for the Federal Circuit as follows: “[T]he statutory language of FASA is clear

and gives the court no room to exercise jurisdiction over claims made ‘in connection with

the issuance or proposed issuance of a task or delivery order.’” SRA Int’l, Inc. v. United

States, 766 F.3d 1409, 1413 (Fed. Cir. 2014) (quoting 10 U.S.C. § 2304c(e))

(acknowledging that “this statute is somewhat unusual in that it effectively eliminates all

judicial review for protests made in connection with a procurement designated as a task

order”).




                                             10
       Whether this court has jurisdiction to hear OST’s protest turns on whether it is

barred by FASA. The government argues that OST’s bid protest is barred by FASA

because OST’s challenge is inextricably tied to DHA’s decision to procure IT services

using a task order under the Alliant GWAC. The government argues that this result is

compelled by the Federal Circuit’s decision in SRA Int’l, Inc.. In SRA Int’l, Inc. the

protestor challenged the GSA’s issuance of an Organizational Conflict of Interest

(“OCI”) waiver after the agency had awarded a different task order under the Alliant

GWAC. Id. at 1411. The Federal Circuit held that the Court of Federal Claims erred in

exercising jurisdiction over SRA’s claims because SRA’s protest of an OCI waiver was

made in connection with the issuance of a task order under the Alliant GWAC. Id. at

1413-14.

       The government argues that the Federal Circuit’s decision in SRA Int’l, Inc

mandates that OST’s case be dismissed because OST’s objection to DHA’s action hinges

on DHA’s decision to issue a task order. The government contends that a challenge to

issuance of a task order on the grounds that a specific task order was selected because the

protestor was not eligible to compete is still a challenge to the issuance of a task order

and thus falls within the FASA ban. In support, the government relies on Mori

Associates, Inc. v. United States, 113 Fed. Cl. 33 (2013), in which a protestor also

challenged an agency decision to issue a task order on the grounds that the specific task

order was selected in order to keep the incumbent from competing. In Mori the court

held that it did not have jurisdiction to hear the case under FASA. In dismissing the

protest for lack of jurisdiction, the Mori court held that FASA does not bar a protest


                                             11
involving task orders when there is no causal relationship between the alleged protest and

the issuance of a task order. However, “when a protest challenges the decision to obtain

services by requesting proposals from ... task order contract holders, the FASA

prohibition on protests clearly applies.” Id. at 38. Here, the government argues, OST is

challenging the issuance of a specific type of task order and thus FASA applies.

       OST argues that this court should exercise jurisdiction because OST is challenging

the DHA’s allegedly “bad faith” decision to find a contract vehicle designed to keep OST

from competing. OST contends that DHA’s decision to find that contract vehicle is

distinct from the proposed issuance of a task order under the Alliant GWAC. Pl.’s Resp.

to Mot. to Dismiss at 4. According to OST, DHA’s decision to issue the task order under

the Alliant GWAC “is a mere consequence of the improper procurement decision at

issue[,]” i.e. the decision to exclude OST from the competition. Id.

       In support of its argument, OST relies on this court’s decisions in BayFirst

Solution, LLC v. United States, 104 Fed. Cl. 493 (2012) and McAfee, Inc. v. United

States, 111 Fed. Cl. 696 (2013). In BayFirst, the protestor was challenging the

cancellation of a solicitation as well as the issuance of a task order. 104 Fed. Cl. at 499.

The court in BayFirst, held that the FASA jurisdictional bar did not apply to the agency’s

decision to cancel a solicitation. Id. at 507-08. Specifically, the court held that although

the cancellation of the solicitation and issuance of the task order were temporally

connected, the cancellation of the solicitation can be viewed as “a discrete procurement

decision and thus could have been the subject of a separate protest.” Id. at 507. In

McAfee, the court also found that FASA did not bar a protest on the grounds that the


                                             12
protestor was challenging the agency’s threshold decision to standardize a security

network and not the issuance of a task order. 111 Fed. Cl. at 709-10. The court found

that the decision to standardize the security network was a separate decision from the

decision to issue the task order and thus was not in connection with a task order. Id.

OST argues that the distinctions made in BayFirst and McAfee should be applied to

OST’s bid protest. Specifically, OST maintains that the DHA’s decision to exclude OST

from competing for the follow-on contract is a distinct decision that is separate from the

decision to issue a task order for IT services under the Alliant GWAC. OST further

argues that Mori is distinguishable from the pending case because in Mori the agency was

making a decision between issuing a task order under two different contacts and thus this

court would not have had jurisdiction under FASA to hear a challenge to issuance of a

task order under the contract the protestor wanted in any event.

       The court has considered the parties’ arguments and agrees with the government

that it does not have jurisdiction to hear OST’s bid protest because of the jurisdictional

limitations set in FASA. The Federal Circuit in SRA Int., Inc. recognized that “[t]he

statutory language of FASA is clear and gives the court no room to exercise jurisdiction,”

except for situations not applicable here, so that it “effectively eliminates all judicial

review for protests made in connection with a procurement designated as a task order.”

766 F.3d at 1413. Although OST contends that DHA made a decision to exclude OST

from competing for follow-on IT services separate from DHA’s decision to issue a task

order under the Alliant GWAC, this view is not supported by the record. The record

shows that DHA made a decision not to exercise the option on OST’s contract and to find


                                              13
another contract vehicle. The record does not show that DHA made then another

decision to keep OST out of any future competition. Rather, the record shows that the

DHA examined its options and determined that because the Alliant GWAC could meet its

needs, DHA policy required that the Alliant GWAC be used. OST’s ineligibility to

compete is tied directly to DHA’s decision to issue a task order under the Alliant GWAC.

For this reason, the court finds that the present case is virtually identical to Mori. There,

the court found that FASA deprived the court of jurisdiction to hear the bid protest

because a challenge to issuance of a task order using a contracting vehicle under which

the protestor could not compete was in fact a challenge in connection with a task order.

Mori, 113 Fed. Cl. at 38. The court finds the same reasoning applies here.

       In addition, this court finds that this case is very different from both Bayside and

McAfee on which OST relies. In both of those cases the court found that at least portions

of the protestor’s bid protest were within this court’s jurisdiction because they were

plainly separate from the decision to issue a task order. Specifically, in Bayside the court

held that it had jurisdiction over the protestor’s allegations concerning the improper

cancellation of a solicitation for services that were eventually procured using a task order.

104 Fed. Cl. at 507. Here the only discrete prior decision by DHA, as noted above, was

DHA’s decision not to exercise its option under OST’s expired contract. That decision,

however, only can be considered under the CDA and is not now before the court. There

was no separate decision to keep OST from competing. OST’s inability to compete was a

consequence of DHA’s decision to issue a task order under the Alliant GWAC.

Similarly, unlike the protestor in McAfee, OST is not challenging the underlying decision


                                             14
to acquire IT services or the type of IT services to be acquired which is “not tied to any

single solicitation or delivery order[.]” 111 Fed. Cl. at 696. Rather, OST is challenging

the task order DHA selected on the grounds that OST cannot compete under that task

order. OST’s protest is thus clearly in connection with the issuance of a specific task

order. In such circumstances, FASA bars OST’s bid protest.

       B.     Plaintiff Cannot Establish that DHA Officials Acted in Bad Faith by
              Selecting the Alliant GWAC

       As discussed above, although the court finds that it does not have jurisdiction to

hear OST’s bid protest due to the jurisdictional bar in FASA, the court finds that even if it

could rule on the merits of OST’s bad faith claim, OST would still not prevail. OST

argues that the government’s reliance on the “Procurement of Health Information

Technology Products and Services”, policy to show that DHA had to use the Alliant

GWAC is unsupported. According to OST, the “primary objective of [the above-cited

policy] is to provide the DHA ECS (E-Commerce System) with IT support services”

which is not the same as the acquisition of health information technology. OST argues

further that DHA has used other contracts for IT health-related services including the

CIO-SP3 GWAC. In support of its argument, OST has attached to its motion for

judgment on the administrative record the RFP for another procurement that OST

maintains is for similar services to those at issue in this case but was issued by DHA

under the CIO-SP3 GWAC for the “Defense Health Agency (DHA), Health Information

Technology, Solution Delivery Division (SDD), and Clinical Support Branch for the

[Nutrition Management Information System and Special Needs Program Management



                                             15
Information Systems].” Pl.’s Mot., Ex. 1 at 1. OST also argues that DHA’s CO Wood

did not specifically reference a “mandatory” policy requiring the use of the Alliant

GWAC contracting vehicle when she selected the Alliant GWAC. OST contends that

there would have been no reason for CO Wood to conduct “market research” to

determine the most appropriate contracting vehicle for IT services if DHA had to use the

Alliant GWAC as a matter of policy. Finally, OST argues that DHA’s decision to keep

the procurement under $10,000,000 was done intentionally to keep OST from

challenging the procurement under FASA. According to OST, it is for these basic

reasons that the only plausible explanation for DHA’s decision to use the Alliant GWAC

was to harm OST by keeping it from competing for DHA’s IT needs.

       In response, the government argues that none of these arguments undermines the

presumption of good faith that attaches to government decision-making. Def.’s Mot. to

Dismiss at 22. First, the government explains that the record makes clear that if the

Alliant GWAC can be used to secure the needed IT services for DHA that DHA must

then use the Alliant GWAC to obtain the IT services. The government states that the

plain language of the “Procurement of Health Information Technology Products and

Services” policy mandates the use of the Alliant GWAC as the procurement vehicle for

procuring the IT services at issue in this bid protest. Specifically, the government cites

the portion of the policy that states that “DHA contracting officer shall comply with the

following policy when procuring HIT products and services” and that “[i]f a service can

be acquired by using GSA’s Alliant GWAC or Alliant Small Business GWAC, then one

of those vehicles shall be used to procure the service.” AR 1 (emphasis added.). The


                                             16
government argues that the solicitation makes clear that it is procuring health IT services

which are covered by the policy in question. Specifically, the government argues that the

RFP’s performance work statement explains how the procurement seeks “IT service to

maintain, operate, and provide engineering and technical support for the DHA ECS

program” and that those IT services include the “administration and maintenance of

existing DHCA ECS custom software[.]” AR 501. Therefore, the government maintains

that the procurement at issue clearly falls within the scope of the “Procurement of Health

Information Technology Products and Services” policy and that once CO Wood

confirmed that there were contractors capable of providing the needed services under the

Alliant Small Business GWAC the DHA had to use that contract vehicle. In such

circumstances the government contends OST has not shown how the procurement

decision, consistent with a mandatory policy, was made in bad faith.

       Second, the government argues that OST’s reliance on the RFP attached to its

motion is misplaced because it is not part of the administrative record. Furthermore, the

government argues that even if the court were to consider the RFP attached to its

memorandum, the RFP is not for a DHA procurement and thus it is irrelevant to the issue

before the court. The government explains that the RFP referenced by OST was issued

for a procurement issued by the U.S. Army Medical Research Acquisition Activity

(“USAMRAA”) at Fort Detrick, Maryland to fulfill a DHA requirement and thus DHA’s

procurement policies did not directly apply.

       Third, with regard to OST’s claim that CO Wood’s “market survey,” proves the

Alliant GWAC was not mandated, the government explains that CO Wood conducted her


                                               17
market research in accordance with the subject DHA policy to ensure that there were a

sufficient number of Alliant Small Business GWAC vendors able to compete for the

procurement pursuant to the policy. See AR 116, 129, 135, 140, 239, 637-42. Finally,

the government argues that DHA’s decision to keep the Alliant GWAC under

$10,000,000 was not done to harm OST but to ensure that DHA was able to change

service providers without any interruption of services and thus DHA designed the

procurement to fit within FASA’s jurisdictional bar.

       The court agrees with the government that OST’s arguments that the DHA policy

did not mandate the use of the Alliant GWAC and thus the decision to procure the needed

services through the Alliant GWAC was made in bad faith to harm OST is without

support. Bad faith must be established with “well-nigh irrefragable poof” according to

the Federal Circuit with evidence to show a “‘specific intent to injure the plaintiff.’” Am–

Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002)

(citation omitted). Here, OST has not met its burden. Indeed, it has not presented any

hard facts that would support further investigation into DHA’s actions. To begin, the

court finds that DHA’s policy does mandate the use of the Alliant GWAC where there

are vendors to meet DHA’s needs. In addition, the court finds that the DHA reasonably

concluded that its policy applied to the services at issue in this case. By its terms it

states: “[if] a service can be acquired by using GSA’s Alliant GWAC or the Alliant Small

Business GWAC, the one of those vehicles shall be used to procure the service.” AR 1.

The services involved in this acquisition are “IT service[s] to maintain, operate, and

provide engineering and technical support for the DHA ECS program.” AR 501. OST’s


                                              18
attempt to parse the language of the policy and the RFP is unconvincing. Thus the IT

services provided for under Alliant GWAC clearly encompass the health information

technology services needed by DHA to service its 9.4 million users. In this connection,

the court further finds that OST’s reliance on the RFP attached to its memoranda is not

properly before the court and irrelevant in any case. OST has not moved to supplement

the administrative record. Moreover, the RFP concerns a proposal issued and

administered by a different agency and not DHA. As such, the RFP OST relies on has no

bearing on this case.

       Further, the court agrees with the government that CO Wood’s “market survey”

was not inconsistent with the DHA policy or use of the Alliant GWAC. CO Wood

needed to confirm that the Alliant GWAC could meet DHA’s needs. The court also finds

that CO Woods did in fact rely on the DHA policy in making her final decision to use the

Alliant GWAC. See AR 23, 236. Finally, the court agrees with the government that

DHA’s decision to keep the task order to less than $10,000,000 and thus within FASA’s

bid protest limitation does not evince bad faith toward OST but is consistent with DHA’s

claim that it needed to change service providers without interruption.

       Given the record in this case, OST has failed to overcome the presumption of good

faith attached to government decision-making. OST has not produced any hard facts to

show that DHA’s decision to use the Alliant GWAC to obtain the needed IT services was

made for the sole purpose of harming OST and not to fulfill its legitimate need for IT

services. To the contrary, the record establishes that DHA had a legitimate government

reason for using the Alliant GWAC to meet its IT needs.


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                                   CONCLUSION

      For the reasons stated above, the government’s motion to dismiss is GRANTED,

OST’s motion for judgment on the administrative record and the government’s cross-

motion for judgment on the administrative record are denied as MOOT. The Clerk is

directed to enter judgment accordingly. No costs.

      IT IS SO ORDERED.


                                                       s/Nancy B. Firestone
                                                       NANCY B. FIRESTONE
                                                       Senior Judge




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