A Squared Joint Venture v. United States
133 Fed. Cl. 291
| Fed. Cl. | 2017Background
- NASA issued RFP NNM16534124R for follow-on Acquisition and Business Support Services (ABSS2); proposals due March 18, 2016. Al-Razaq was incumbent under ABSS1 and is a member of plaintiff A Squared Joint Venture (A2JV).
- Al-Razaq’s ABSS1 contract contained a limitation-on-future-contracting clause and an OCI plan requiring pre-proposal OCI screening and written disclosure/agency approval before pursuing follow-on work.
- Two Al-Razaq program managers (one former, one then-current) assisted in preparing A2JV’s ABSS2 proposal; A2JV did not obtain written approval from NASA or formally disclose the potential OCI in writing as required by the solicitation and Al-Razaq’s OCI plan.
- The contracting officer disqualified A2JV on May 9, 2016 for a potential organizational conflict of interest (unequal access to information and appearance issues); GAO dismissed A2JV’s subsequent protest as untimely.
- Thirteen months after disqualification and ten months after the GAO dismissal, A2JV filed suit and moved for a preliminary injunction to enjoin award of ABSS2; the government opposed, arguing the CO’s decision was reasonable and the plaintiff delayed.
- The Court denied the preliminary injunction, finding A2JV unlikely to succeed on the merits (the record supports potential OCI and lack of required written disclosures/approvals), and that equities/public interest favored prompt award (cost savings and potential waste/delay if award blocked).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disqualification for potential OCI was arbitrary/capricious | CO lacked reason to find potential OCI; Al-Razaq implemented internal firewall and no actual OCI occurred | CO reasonably found potential OCI: incumbent staff had access to sensitive nonpublic data, A2JV/Al-Razaq failed to obtain written disclosure or NASA approval | Held: CO’s decision was rationally supported; A2JV unlikely to prevail on merits |
| Whether informal communications with NASA cured A2JV’s failure to disclose/obtain approval | Informal notice and discussions put NASA on notice and resolved concerns | Solicitation required written disclosure/warranty; informal contacts did not satisfy requirement or substitute for written mitigation/approval | Held: Informal interactions insufficient; written notice/approval required |
| Whether plaintiff shows irreparable harm justifying injunctive relief | Denial of chance to compete for multi-year contract ($83M) causes irreparable injury | Delay by plaintiff (13 months) and GAO dismissal; government will incur daily increased costs and wasted procurement effort if award delayed | Held: Economic harm largely self-inflicted by delay; equities/public interest favor government; injunction denied |
| Do procedural defenses (Blue & Gold/laches) bar relief now | A2JV did not concede; merits should be reached | Government argues waiver under Blue & Gold and laches due to delay | Held: Court declined to decide Blue & Gold or laches at injunction stage; will address on merits later |
Key Cases Cited
- PGBA, LLC v. United States, 389 F.3d 1219 (Fed. Cir. 2004) (four-factor preliminary injunction framework in bid protests)
- PAI Corp. v. United States, 614 F.3d 1347 (Fed. Cir. 2010) (review standard for procurement decisions: arbitrary and capricious)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (OCI identification and mitigation are fact-specific and entitled to agency discretion)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (prospective waiver/requirement to seek clarification of solicitation terms pre-proposal)
- Aircraft Charter Sols., Inc. v. United States, 109 Fed. Cl. 398 (Fed. Cl. 2013) (plaintiff delay can undermine claims of irreparable harm)