Afghan American Army Services Corp. v. United States
106 Fed. Cl. 714
Fed. Cl.2012Background
- AAA challenges a NAT procurement nonresponsibility determination and exclusion from award in a post-award bid protest.
- Army relied on AAA performance under the HNT contract and a referral for proposed debarment alleging forged TMRs to deem AAA nonresponsible.
- Court remands for reevaluation of AAA’s responsibility excluding the alleged forgeries or the debarment referral as bases.
- Anham LLC, another HNT contractor, was found responsible; plaintiff alleges disparate treatment in comparators and evaluation.
- Court grants supplementation of the administrative record to include the SDO debarrment termination and related materials, and grants injunctive relief.
- Remand allows the Army to reevaluate AAA’s responsibility within 45 days without the challenged factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the CO rely improperly on forgery allegations? | AAA contends forgeries were not raised in HNT performance and details were not provided. | Government maintained forged TMRs supported nonresponsibility. | Remanded; reliance on forgery allegations to determine responsibility deemed improper. |
| Was there disparate treatment versus Anham? | AAA and Anham were similarly situated but treated differently in responsibility. | Differences in record evidence justify different outcomes. | Not decided as standalone; remand to reevaluate without forged allegations may resolve disparity issue. |
| Should post-decision debarment materials be supplemented? | Supplementation is necessary to assess agency considerations and responses to forgery allegations. | Record should reflect only the procurement decision at issue. | Granted; AR supplemented with SDO termination and related responses for effective review. |
| Is permanent injunction warranted pending reevaluation? | Without reevaluation AAA would remain excluded unfairly. | Injunction would disrupt ongoing procurement and harm government interests. | Granted; injunction mandating reevaluation within 45 days and potential award if responsible. |
Key Cases Cited
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed.Cir.2004) (strong basis for responsibility discretion and rational review)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed.Cir.2001) (broad contractor discretion in responsibility determinations)
- Ceres Env’tl. Servs., Inc. v. United States, 97 F.3d 277 (Fed.Cir.2011) (requires rational connection between facts and choice)
- Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C.Cir.1974) (post-decisional information can inform review)
- Nat’l Mar. Safety Ass’n v. Occupational Safety & Health Admin., 649 F.3d 743 (D.C.Cir.2011) (consideration of all relevant factors in agency action)
- Al Ghanim Combined Grp. Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 Fed.Cl. 502 (Fed.Cl.2003) (post-decision supplementation and review considerations)
- Arch Chems., Inc. v. United States, 64 Fed.Cl. 380 (Fed.Cl.2005) (post hoc rationalizations and supplementation concerns)
- Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C.Cir.2008) (consideration of agency predictions in review)