     In the United States Court of Federal Claims
                                         No. 16-1365 C
                                    Filed: November 3, 2016

**************************************                28 U.S.C. § 1491(b)(2) (Administrative
                                     *                   Dispute Resolution Act
FAVOR TECHCONSULTING, LLC,           *                   Jurisdiction);
                                     *                31 U.S.C. §§ 3553(d)(3), (d)(4)(A)
      Plaintiff,                     *                   (Competition in Contracting Act);
                                     *                48 C.F.R. § 8.405-3(b)(3) (Blanket
v.                                   *                   Purchase Agreements, Notice of
                                     *                   Award);
                                     *                Rules of the United States Court of
THE UNITED STATES,                   *                   Federal Claims (“RCFC”) 11(b),
                                     *                   (c)(3), (Sanctions);
      Defendant.                     *                RCFC 57 (Declaratory Judgment);
                                     *                RCFC 65(d) (Injunction)
**************************************

               MEMORANDUM OPINION AND ORDER IMMEDIATELY
                    INSTITUTING THE AUTOMATIC STAY

I.     RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY.1
       On May 26, 2016, the Defense Intelligence Agency (“DIA”) issued Solicitation No.
HHM402-16-R-033 (“the Solicitation”) announcing that it planned to issue three Blanket Purchase
Agreements (“BPAs”) for Enterprise Senior Information Technology Advisors services,2 and
Enterprise Information Assurance services.3 See Compl. at ¶12.

       1
          The relevant facts are derived from the October 19, 2016 Complaint (“Compl.”) and the
Exhibits attached to the October 19, 2016 Memorandum Of Points And Authorities In Support Of
Plaintiff’s Motions (“Pl. Mem. Exs. A–F”).
       2
          According to the December 16, 2015 Statement of Work (“SOW”), included in the
Government’s October 24, 2016 Appendix (“Gov’t App’x”), the “Enterprise Senior Information
Technology Advisors Program” was established to provide “assistance in IT planning, program
management, and development, requirements management services and acquisition support,
integration and engineering services, systems security and information assurance engineering
services, and services in portfolio management and process improvement.” Gov’t App’x at A108.
       3
         “Information Assurance” is defined in the SOW as “engineering and planning functions
in support of activities that enhance the security posture of the enterprise.” Gov’t App’x at A136.
These functions include “supporting information S&IA–Systems Security Engineering–activities
and information assurance analysis, as well as employing systems and Information Assurance best
practices spanning product evaluation, testing, analysis, and providing recommendations.” Gov’t
App’x at A136.
        On June 8, 2016, Favor TechConsulting, LLC (“FTC”) submitted an offer to DIA. Compl.
at ¶13. On September 27, 2016, however, FTC received an e-mail from a DIA Contracting Officer
stating that three BPAs were awarded to other companies. Compl. at ¶15. Attached to the e-mail
was an Unsuccessful Offeror Notification And Debriefing for FTC (“the Award Notice”), dated
September 27, 2016. Pl. Mem. Ex. A. The Award Notice specifically stated that the three BPAs
were awarded as follows: BPA HHMM402-16-A-0009 to Axiologic Solutions, LLC
(“Axiologic”); BPA HHM402-16-A-0010 to Assured Contracting Solutions (“ACS”); and BPA
HHM402-16-A-011 to Invictus International Consulting (“IIC”).4 Pl. Mem. Ex. A.

      On October 7, 2016, FTC filed a bid protest with the Government Accountability Office
(“GAO”), Case No. B-413937, challenging DIA’s evaluation criteria. Pursuant to the Competition
in Contracting Act (“CICA”), 31 U.S.C. §§ 3553(d)(3)(A)–(d)(4),5 FTC was entitled to an
automatic stay of performance. Compl. at ¶4.



       4
           Axiologic, ACS, and IIC are collectively referred to in this Opinion as “the awardees.”
       5
           Section 3553(d)(3)(A) of the CICA, in relevant part, provides:

       If the Federal agency awarding the contract receives notice of a protest in
       accordance with this section during the period described in paragraph (4)—

                 (i) the contracting officer may not authorize performance of the contract to
                 begin while the protest is pending; or

                 (ii) if authorization for contract performance to proceed was not withheld
                 in accordance with paragraph (2) before receipt of the notice, the
                 contracting officer shall immediately direct the contractor to cease
                 performance under the contract and to suspend any related activities that
                 may result in additional obligations being incurred by the United States
                 under that contract.

31 U.S.C. § 3553(d)(3)(A).

Section 3553(d)(4) provides:

       The period referred to in paragraphs (2) and (3)(A), with respect to a contract, is
       the period beginning on the date of the contract award and ending on the later of—

                 (A) the date that is 10 days after the date of the contract award; or

                 (B) the date that is 5 days after the debriefing date offered to an unsuccessful
                 offeror for any debriefing that is requested and, when requested, is required.

31 U.S.C. § 3553(d)(4).

                                                    2
        On October 13, 2016, DIA’s counsel notified FTC that the BPAs were awarded on
September 26, 2016, not September 27, 2016, so that Plaintiff’s GAO protest was untimely and
the automatic CICA stay would not be instituted. Compl. at ¶19.

        On October 14, 2016, FTC filed a Pre-Filing Notice Of Protest, as required by Rule 2 of
Appendix C of the Rules of the United States Court of Federal Claims (“RCFC”). Shortly
thereafter, the Government contacted FTC and provided a copy of the cover pages of all three
BPAs; the cover pages indicated that a representative of the respective awardees signed the BPA
on September 26, 2016, and, under section 31c “Date Signed,” indicated that the Contracting
Officer also signed on September 27, 2016. Compl. at ¶¶22–24; Pl. Mem. Ex. F. The cover pages
of the Axiologic and IIC BPAs also indicated, under section 3 “Award/Effective Date,” that each
contract’s “Award Date/Effective Date” was September 27, 2016. Pl. Mem. Ex. F. The cover
page of the ACS BPA indicated that the contract’s “Award/Effective Date” was September 14,
2016. Pl. Mem. Ex. F.

       On October 19, 2016, FTC (“Plaintiff”) filed a Complaint in the United States Court of
Federal Claims, together with: a Motion For Declaratory Judgment; a Motion For A Temporary
Restraining Order; a Motion For A Preliminary Injunction; and a Memorandum Of Points And
Authorities In Support Of Plaintiff’s Motions (“Pl. Mem.”).

         That same day, the court convened a telephone status conference, during which the
Government represented that, the stay was not being instituted, because this was a “mission
critical” procurement and agency documents showed the actual date of award was September 26,
2016.

       Thereafter, on October 19, 2016, the court issued a Memorandum Opinion And Temporary
Restraining Order (“TRO”), to prohibit performance of the three BPAs until October 26, 2016, so
the Government had time to demonstrate that award was made on September 26, 2016 and, if the
procurement indeed was “mission critical,” to obtain an override, pursuant to 31 U.S.C. §
3553(d)(3)(C).6


       6
           31 U.S.C. § 3553(d)(3)(C) provides:

       The head of the procuring activity may authorize the performance of the contract
       (notwithstanding a protest of which the Federal agency has notice under this
       section)—

                (i) upon a written finding that—

                       (I) performance of the contract is in the best interests of the United
                       States; or

                       (II) urgent and compelling circumstances that significantly affect
                       interests of the United States will not permit waiting for the decision
                       of the Comptroller General concerning the protest; and


                                                   3
        Since no response was forthcoming, the court convened a telephone status conference on
the afternoon of October 24, 2016. The Government advised the court that a filing would be made
later that same day. The court then extended the TRO until November 3, 2016, to give Plaintiff
time to respond to the Government’s filing. Later that day, the Government filed a Brief In
Response To The Court’s October 19, 2016 Order (“Gov’t Resp.”), and an Appendix including:
internal DIA e-mails generated by the agency’s Contracting Management System (“CMS”); the
CMS Operations Manual; and Declarations from Donald Camden, the DIA Contracting Chief;
Ryan Corcoran Luhman, the Contracting Officer for the relevant BPAs; and Holly Carr, a DIA
Contracting Specialist.

       On October 31, 2016, Plaintiff filed a Reply (“Pl. Reply”).

II.    DISCUSSION.

       A.      Jurisdiction.

        Under the Administrative Dispute Resolution Act of 1995, 28 U.S.C. § 1491(b), the United
States Court of Federal Claims has jurisdiction to hear actions brought by interested parties
alleging the violation of “any . . . statute or regulation in connection with a procurement or a
proposed procurement.” 28 U.S.C § 1491(b). The United States Court of Appeals for the Federal
Circuit has held that the automatic stay provision of the CICA, 31 U.S.C. § 3553, is a “statute in
connection with a procurement.” RAMCOR Servs. Group v. United States, 185 F.3d 1286, 1290
(Fed. Cir. 1999). The United States Court of Federal Claims therefore has jurisdiction, under 28
U.S.C. § 1491(b)(1), to adjudicate actions alleging violation of 31 U.S.C. § 3553. See RAMCOR
Servs. Group, 185 F.3d at 1290 (“[T]his court determines that 28 U.S.C. § 1491(b)(1) grants the
trial court jurisdiction over an objection to a violation of 31 U.S.C. § 3553(c)(2).”).

       B.      Standard of Review.

        The United States Court of Federal Claims is required to review an agency’s compliance
with 31 U.S.C. §§ 3553(d)(3) and (d)(4)(A) under the standards set forth in the Administrative
Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). See 28 U.S.C. § 1491(b)(4) (“In any action under
this subsection [i.e., in connection with a bid protest], the courts shall review the agency's decision
pursuant to the standards set for in section 706 of title 5.”). Section 706(2)(A) requires a
determination that the agency action was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Citizens to Preserve Overton Park, Inv. v. Volpe, 401 U.S.
402, 416 (1971). An agency action is arbitrary and capricious, “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of


               (ii) after the Comptroller General is notified of that finding.

31 U.S.C. § 3553(d)(3)(C).


                                                  4
agency expertise.” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Ins. Co., 463
U.S. 29, 43 (1983).

       C.      Plaintiff’s October 19, 2016 Motions For Declaratory Judgment, Temporary
               Restraining Order, and Preliminary Injunction.

               1.      Plaintiff’s Argument.

       Plaintiff argues that DIA should have instituted a 10-day automatic stay, pursuant to the
CICA, 31 U.S.C. §§ 3553(d)(3) and (d)(4)(A), and DIA’s failure to do so was arbitrary, capricious,
and contrary to law. Pl. Mem. at 1.

         On September 27, 2016, Plaintiff received the Award Notice, dated for the same day, so
Plaintiff filed a bid protest with the GAO on October 7, 2016, i.e., 10 days later. Pl. Mem. at 2.
After Plaintiff was informed by DIA that its protest was untimely, Plaintiff filed a October 14,
2016 Pre-Filing Notice of Protest, and only afterward did the Government provide the cover pages
of the three BPAs. Pl. Mem. at 3. Each was signed by the DIA Contracting Chief, Donald Camden,
in section 31a (“Signature of Contracting Officer”), and each, under section 31c (“Date Signed”),
indicated that the BPA was signed on September 27, 2016. Pl. Mem. Ex. F. In addition, both the
Axiologic BPA and the IIC BPA indicated an “Award/Effective Date” of September 27, 2016. Pl.
Mem. Ex. F.

        As a matter of law, however, a contract is not awarded until the Contracting Officer signs
the document. Pl. Mem. at 7 (citing Caddell Constr. Co., LLC v. United States, 120 Fed. Cl. 724,
726 (Fed. Cl. 2015). In this case, three BPAs show the date was September 27, 2016. (“In order
for a contract to be deemed awarded, the contract officer must have signed[.]”)). Other than the
Award Notice, there was no online posting or other public notification that indicated the date of
award was other than September 27, 2016. Pl. Mem. at 7–8.

        Therefore, Plaintiff seeks a declaratory judgment that: (1) the BPAs were awarded on
September 27, 2016; (2) DIA’s decision not to implement the automatic stay was arbitrary,
capricious, and contrary to section 3553(d)(3) of the CICA;7 and (3) DIA must implement the
CICA automatic stay until the GAO resolves Plaintiff’s pending bid protest. Pl. Mem. at 1. A
declaratory judgment is the appropriate relief in cases when the Government fails to comply with
the automatic stay granted by the CICA. Cf. URS Fed. Servs. v. United States, 102 Fed. Cl. 674,
676 (2012) (determining that declaratory relief was the appropriate remedy in a CICA stay override
case). In fact, the court may issue a declaratory judgment without considering the factors for
granting injunctive relief. See id. (“When the court deems a declaratory judgment is the
appropriate relief, the imposition of standards for injunctive relief is not required[.]”); see also
Supreme Foodservice FmbH v. United States, 109 Fed. Cl. 369, 397 (2013) (“In creating the CICA
stay of performance, Congress decided that the injunctive relief factors need not be invoked when

       7
         Performance of a government contract is suspended under section 3553(d)(3), if the
agency receives notice of a bid protest before the GAO within 10 days of contract award. See 31
U.S.C. § 3553(d)(4)(A) (“[The notice period] with respect to a contract, is the period beginning
on the date of the contract award and ending on . . . the date that is 10 days after the date of
contract award.”).
                                                 5
a bid protest is timely filed with the GAO, instead requiring that contract performance be stayed
automatically.”).

        In the alternative, Plaintiff argues that all four factors for injunctive relief are met, and, if
the court determines that a declaratory judgment is inappropriate, the court should issue an
injunction staying contract performance. Pl. Mem. at 10–13.

                2.      The Government’s Response.

        The Government responds that the documents in the October 24, 2016 Appendix evidence
that the BPAs were awarded on September 26, 2016. Govt. Resp. at 1. Ms. Carr, a DIA Contract
Specialist, declared under oath that the computerized Contract Management System (“CMS”)
distributed the final contracts on September 26, 2016, and CMS will not distribute a final contract
without a signature page. Gov’t App’x at A144-145. On September 26, 2016, the CMS distributed
three “fully-executed contract packages” by e-mail to various DIA officers, including Ms. Carr
and Mr. Corcoran Luhman, the Contracting Officer for the relevant BPAs. Gov’t App’x at A160
(e-mail generated by CMS sent to DIA officers). The cover pages of all three fully-executed
contract packages, attached to the e-mail, state that the contract was signed on September 26, 2016.
Gov’t App’x at A10 (IIC cover page); A96 (Axiologic Cover Page); A121 (ACS Cover Page).8 In
addition, included in the fully-executed contract packages were scanned copies of the handwritten
signatures of representatives from all three awardees, i.e., Axiologic, ACS, and IIC, as well as the
handwritten signature of Mr. Camden. Gov’t App’x at A244 (IIC signature page); A269
(Axiologic signature page); A295 (ACS signature page).9 In addition, both Mr. Camden and Mr.
Corcoran Luhman declared that the contracts were awarded and signed by the BPA awardees and
Mr. Camden on September 26, 2016. Gov’t App’x at A2 (Camden Declaration), A5 (Corcoran
Luhman Declaration)).

        The Government argues that the mandatory CICA stay applies only when an agency
receives notice from the GAO, within 10 days of contract award. Gov’t Resp. at 23 (citing 31
U.S.C. §§ 3553(d)(3)(A), (d)(4)); see also Systems Plus, Inc. v. United States, 58 Fed. Cl. 206, 208
(2005) (ruling that an automatic stay is not required when a protest is filed more than 10 days after
contract award). According to the Government’s interpretation of Systems Plus, however, “the
relevant date for purposes of triggering the automatic stay in the GAO is the BPA award date . . .
not the date the agency notified the protestor.” Gov’t Resp. at 3. Because the CMS e-mail and the
declarations demonstrate that the contract was awarded on September 26, 2016, instead of
September 27, 2016, the automatic stay should not be instituted




        8
           The “Award/Effective Date[s]” on the IIC and Axiologic Cover Pages are listed as
September 27, 2016. Gov’t App’x at A10, A96. The “Award/Effective Date” on the ACS contract
is listed as September 14, 2016. Gov’t App’x at A121.

        The scanned signature pages retain a “Date Signed” of September 27, 2016. See Gov’t
        9

App’x at A244 (IIC signature page); A269 (Axiologic signature page); A295 (ACS signature
page).
                                                   6
       Finally, although the Federal Acquisition Regulation (“FAR”) provides that an awarding
agency should give “timely notification to unsuccessful offerors,” 48 C.F.R. § 8.405-3(b)(3), one
day’s notice is timely “under any reasonable definition.” Gov’t Resp. at 3–4.

               3.      Plaintiff’s Reply.

       Plaintiff replies that the documents in the Government’s October 24, 2016 Appendix, i.e.,
the CMS materials and Declarations, are irrelevant, because they do not contradict the fact that the
BPA signature pages show an award date of September 27, 2016, that serves as the only
recordation of the award date since there was no public award notice.10 In addition, the Award
Notice received by Plaintiff was dated September 27, 2016.11 Pl. Reply at 2. In support, Plaintiff
cites United States Court of Federal Claims cases where the contract was not considered executed
and final until signed by the Contracting Officer. See JEM Transport, Inc. v. United States, 120
Fed. Cl. 189, 195–96 (Fed. Cl. 2015) (determining that no contract is formed until the contract is
signed by the Contracting Officer); see also Bannum, Inc. v. United States, 115 Fed. Cl. 257, 260
(2014) (finding that the solicitation’s date of contract award was date the contract was signed by
the Contracting Officer).

        Plaintiff also points out that the Government’s October 24, 2016 Appendix should be
barred under the parol evidence rule, because it is extrinsic evidence. Pl. Reply. at 3–4 (citing
Cooper Realty Co. v. United States, 36 Fed. Cl. 284, 289 (1996) (defining parol evidence as “prior
or contemporaneous evidence seeking to add to or vary the terms of a written agreement, when the
parties have adopted the written agreement, when the parties have adopted the written agreement
as an expression of their final intent.”)). But, custom and trade practice may be used to confirm
the plain meaning of a document, and, “any reasonable government contractor” would, under these
circumstances, rely on the BPA cover pages indicating the award date of September 27, 2016. Pl.
Reply at 45 (citing Cheaves v. United States, 108 Fed. Cl. 406, 409 (2013) (“[T]rade practice and
custom may inform the meaning of an otherwise unambiguous term[.]”)).

         Plaintiff adds that the legislative history demonstrates that Congress enacted the CICA to
“increase the use of competition in government contracting,” and ensure the “availability of
information needed not only by [the GAO] to make determinations in procurement protests, but
also by interested parties to identify, and initiate actions against, solicitations and awards which
they believe are unlawful.” H.R. Conf. Rep. No. 98–861 at 1421 (1984). Typically, the only
information a potential protester receives is the information provided by the procuring agency in
the unsuccessful offeror notice. Pl. Mem. at 8. Accepting the Government’s position in this case—
i.e., that the 10 day automatic stay period is to be measured from the date of the internal decision
to award a contract, instead of the date that the bid protestor receives notice of award—would
allow an awarding agency to withhold notification to offerors until the deadline for triggering an


       10
               A public notice of award is not required under the FAR for the type of contract at issue,
since BPAs are governed by FAR subpart 8.4. See 48 C.F.R. § 5.301(b)(3) (“Notice is not required
 . . . if . . . the contract action is an order placed under subpart 16.5 or 8.4.”).
       11
          Nothing on the Award Notice indicates that the BPAs were awarded on any day other
than September 27, 2016.
                                                   7
automatic stay passed, thereby allowing an agency to avoid the CICA automatic stay provisions
by silence as to award. Pl. Mem. at 6.

       4.      The Court’s Resolution.

               a.      Plaintiff Has Been Deprived Of Its Statutory Right Under The CICA.

         The Government’s failure to institute the CICA’s automatic stay in this case is founded
neither in fact nor law. The record is absolutely clear that Plaintiff learned of the contract award
via the September 27, 2016 Notice of Award. The Notice of Award is marked “September 27,
2016,” and no other date appears that awards the BPAs. Pl. Mem. Ex. A. Nor were there any
other publically available notices of the award date, and nothing in the nearly 300-page October
24, 2016 Appendix submitted by the Government suggests anything to the contrary. In addition,
the Government has not demonstrated, either in the two status conferences convened by the court
in this case or in its filings, how Plaintiff was supposed to know that the contract was awarded by
DIA on September 26, 2016.

       The Government attempts to overcome the facts by suggesting that Plaintiff’s Notice of
Award within one day of the actual award date was “timely under any reasonable definition.”
Gov’t Resp. at 3–4. Although this may be so, it does not overcome the evidence that the Notice
of Award stated that award was made on September 27, 2016.

        In addition, Systems Plus, Inc. v. United States, 58 Fed. Cl. 206, 208 (2005), does not stand
for the rule suggested by the Government, that the automatic stay deadline is measured from the
date of award, regardless of the knowledge of Plaintiff, nor is it precedent. Systems Plus concerned
whether a bid protestor was entitled to an automatic stay under section 3353(d)(4)(B), because that
section provides a 5 day deadline for an automatic stay, after a requested and required debriefing.
Id. at 208 (“[The bid protestor] contends that, because a debriefing was required … the GAO’s
[notice that] a protest was pending triggered a suspension of performance under 31 U.S.C. §
3553(d)(4)(B).”). Instead, this case concerns section 3553(d)(4)(A), the section that provides a 10-
day deadline from the date of contract award.

         Congress enacted the automatic stay to provide the GAO with a “strong enforcement
mechanism.” H.R. Conf. Rep. No. 98–861 at 1435 (1984). The automatic stay provision cannot
function, as intended, if potential bid protestors do not know how long they have to file before
they lose their right to an automatic stay. Without knowledge of the actual award date, potential
bid protestors would be forced to guess how much of the 10-day period was remaining before
filing a protest with the GAO and effectively would be deprived of a statutory right.

        The relevant implementing regulations require that “after award, ordering activities should
provide timely notification to unsuccessful offerors,” and, in cases where an award is based on
factors other than price, the awarding agency should provide a “brief explanation of the basis of
the award.” 48 C.F.R § 8.405-3(b)(3) (emphasis added). For an offeror to exercise the right to file
a protest before the GAO, the offeror is entitled to both notice of award and an explanation of why
they did not receive the award.



                                                 8
       An analogous provision, governing bid protests before the GAO, provides that:

       Protests [other than protests based upon alleged improprieties in a solicitation] shall
       be filed not later than 10 days after the basis of protest is known or should have
       been known (whichever is earlier)[.]

4 C.F.R. § 21.2 (emphasis added ).

      In other words, a potential bid protestor cannot be expected to file a bid protest before they
know when an award is made and the grounds upon which a protest may be based.

        Even assuming, arguendo, that the section 3553(d)(4)(A) 10-day deadline is measured
regardless of the actual notice of the date of award, the Government has not proffered evidence in
this case that the date of award was September 26, 2016. The BPAs surfaced only after Plaintiff
was informed that the 10-day stay would not be instituted, but they all indicate an award date of
September 27, 2016. The signature block on all three BPAs state that the “Date Signed” by the
Contracting Officer was September 27, 2016. Gov’t App’x at A118, A143, A244. In addition,
two out of the three BPAs—the Axiologic and IIC awards, respectively—indicate that the
“Award/Effective Date” of the Contract was September 27, 2016. Gov’t App’x at A118, A244.

        Although the BPAs indicate that they were signed by the awardees on September 26, 2016,
(Gov’t App’x at A118, A143, A244), the general rule is that a contract is not formed, until mutual
intent to contract is expressed, including offer and acceptance. See Trauma Service Group
v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (providing that the requirements of a
government contract are “mutual intent to contract including an offer and acceptance,
consideration, and a Government representative who had actual authority to bind the
Government”). Acceptance by the Government requires agreement by a person with actual
authority to bind the Government in contract. Id. In this case, the BPAs show that the documents
were signed by the Contracting Officer, i.e., the person authorized to bind the Government, on
September 27, 2016, so that contract formation did not occur until that date.

        The Government included in the October 24, 2016 Appendix internal DIA e-mails that
demonstrate that the agency’s CMS system generated a “fully-executed contract package” on
September 26, 2016. The Government argues that these internal communications conclusively
establish that the contract was signed on September 26, 2016, because, according to a sworn
Declaration of a DIA contract specialist, “CMS will not distributed a final contract package
without a signature page.” Gov’t Resp. at 1 (citing Gov’t App’x at A144–145). 12 The fact that
the contracts were shared internally within DIA on September 26, 2016, however, does not change
the fact that the only notice furnished to Plaintiff stated a date of September 27, 2016. Of course,



       12
          The October 24, 2016 Appendix also includes a DIA manual that instructs how Contract
Specialists are to generate a fully executed contract package through operation of CMS. But, this
manual is not legal authority; but internal guidance on how to operate the agency’s bookkeeping
system.


                                                 9
this is why the Government did not provide any legal authority for the proposition that the date of
a computer-generated “contract package” takes precedence over the signed contracts at issue.

        The Government declarants attempt to explain why the September 27, 2016 date on the
face of the BPAs should be disregarded. Gov’t App’x at A1–A3 (Declaration of Donald F.
Camden); A4–A7 (Declaration of Ryan Corcoran Luhman); A144–148 (Declaration of Holly
Carr). The Declarations essentially assert the following: (1) the September 27, 2016 date was
“prepopulated” on the face of the BPAs, because the contracts were originally planned to be
awarded on that date; (2) the BPAs were actually signed by hand by representatives of the awardees
and by a DIA representative on September 26, 2016; (3) that DIA forgot to change and/or failed
to notice the September 27, 2016 date before the documents were signed and uploaded into the
CMS.13 These Declarations, however, do not explain how Plaintiff was supposed to learn of the
actual date of award, other than the Notice of Award sent by DIA. And, again, the Government
cites no law in support of the proposition that intent of a contracting officer can vary the face of a
signed contract. In other words, DIA did not institute the automatic stay, because it contends that
internal agency documentation should control the date of award. But, that is contrary to the
CICA’s automatic stay provision.

       For these reasons, the court has determined that DIA’s decision not to institute the
automatic stay, based on the timeliness of Plaintiff’s filing was arbitrary, capricious, contrary to
law and an abuse of agency discretion.

                 b.    Plaintiff Is Entitled To A Declaratory Judgment And A Permanent
                 Injunction.

        Congress authorized the United States Court of Federal Claims, in exercising bid protest
authority, to “award any relief that the court considers proper,” including declaratory relief. 28


       13
            Ms. Carr declared that:

       “[T]he September 27 date is a holdover from when I prepopulated dates in the
       contract documents based on my expectation that the contract awards would take
       place on that date . . . . Due to the end-of fiscal- year demands on my time, I forgot
       to correct the prepopulated September 27 signature dates on the BPAs before Mr.
       Camden signed them [on September 26, 2016].”

Gov’t App’x at A147. In addition, Mr. Camden declared that:

       “When signing the BPAs on September 26, I did not notice the September 27
       date . . . . Even if I had noticed the September 27 date, I doubt I would have given
       it much significance [because] I was aware that the actual contract-award date is
       automatically generated through e-mails from CMS, and that the Contract
       Specialist has a practice of prepopulating dates in the contract documents to reflect
       the anticipated date of contract award.”

Gov’t App’x at A2.
                                                 10
U.S.C. § 1491(b)(2). When a plaintiff’s remedial request for a declaratory judgment is
“tantamount to a request for injunctive relief,” the United States Court of Federal Claims is
required to apply the traditional four-factor test for injunctive relief. See PGBA, LLC v. United
States, 389 F.3d 1219, 1228 (Fed. Cir. 2004).14

        To date, our appellate court has not expressly held that a declaratory judgment has the
effect of an injunction in the context of an agency failing to institute the CICA automatic stay.
Therefore, the court believes the better course is to issue an injunction, particularly since the four
factors are met: i.e., (1) the litigant has suffered an irreparable injury; (2) remedies available at
law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4)
the public interest would not be disserved by a permanent injunction. See eBay, Inv.
v. MercExchange, LLC, 547 U.S. 388, 391 (2006).

        The first and second factors weigh in favor of Plaintiff. In the absence of the automatic
stay, Plaintiff will suffer an irreparable competitive harm, an injury that is difficult to quantify.
For this reason, Congress decided that the appropriate remedy in such circumstances was an
automatic stay. See H.R. Conf. Rep. No. 98–861 at 1435.

        The third factor also weighs in favor of Plaintiff. Plaintiff’s irreparable competitive harm
outweighs any loss suffered by DIA during the short period that Plaintiff’s protest will be pending
before the GAO. Again, by enacting the automatic stay provision, Congress determined that the
balance of harms weighs in favor of suspending contract performance.

         With respect to the final factor, the CICA provides that an awarding agency may override
an automatic stay and proceed with contract performance upon a written determination that: either
(1) performance of the contract is in the best interest of the United States; or (2) urgent and
compelling circumstances that significantly affect interests of the United States will not permit
waiting for the decision of the Comptroller General. See 31 U.S.C. § 3553(d)(3)(C). Despite the
Government’s argument to the court, on October 19, 2016, that this procurement was “mission
critical,” DIA did not issue a statutory override. Finally, nothing before the court demonstrates
that “urgent and compelling circumstances” dictate that DIA cannot wait for the GAO’s
determination.




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          In cases involving override of the CICA automatic stay, however, the United States Court
of Federal Claims has taken the position that declaratory relief is appropriate, as Congress
specifically did not require any evaluation of injunctive relief factors as a prerequisite to a stay of
contract performance. See Chapman Law Firm Co. v. United States, 65 Fed. Cl. 422, 424 (2005)
(“[I]t would be contrary to the legislative scheme to impose [the four factor test]. . . . Declaratory
relief preserves the scheme that Congress enacted.”).
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III.   CONCLUSION.

        For these reasons, the court has determined that DIA’s denial of the automatic stay,
authorized by 31 U.S.C. § 3553, was arbitrary, capricious, unlawful, and an abuse of agency
discretion. Accordingly, the court enters judgment declaring that Plaintiff’s filing with the GAO
was timely, for purposes of the 10-day deadline under 31 U.S.C. § 3553, and that DIA immediately
must institute the CICA automatic stay, until Plaintiff’s pending GAO bid protest, Case No. B-
413937, is resolved.

       In addition, the Government is hereby ordered to show cause on or before January 3, 2017,
why the court should not impose the sanction of requiring the Government to pay Plaintiff’s legal
expenses to date. See RCFC 11(b), (c)(3).


IT IS SO ORDERED.

                                                           s/Susan G. Braden
                                                           SUSAN G. BRADEN
                                                           Judge




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