Elmendorf Support Services Joint Venture v. United States
105 Fed. Cl. 203
| Fed. Cl. | 2012Background
- ESS provides base supply services at JBER under a 2005 contract in its sixth option year; contract may end 2015 if options not exercised.
- DoD conducted a DTM-COMPARE cost analysis showing civilian performance would save $5.4 million over five years.
- Air Force notified plaintiff (Feb 2011) it planned to in-source after the sixth option year; budget constraints led to delays and modifications.
- Temporary suspension of in-sourcing occurred (June 2011); a September 2011 bilateral modification shortened the sixth option to end June 29, 2012 and added a three-month extension.
- Air Force restarted the transition with a mix of military/civilian personnel; by Feb 3, 2012 it predicted the contract would end June 29, 2012; May 30, 2012 refused the three-month option; plaintiff filed June 1, 2012 seeking injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court has jurisdiction over in-sourcing decision under 28 U.S.C. § 1491(b)(1). | In-sourcing is connected to a procurement. | No procurement; lacks jurisdiction. | Court has subject matter jurisdiction. |
| Whether ESS has standing as an interested party and not barred by prudential standing. | Incumbent with direct economic interest. | Prudential standing bars review. | Plaintiff has standing to proceed. |
| Likelihood of success on the merits regarding the cost analysis. | Military costs were not considered; analysis flawed. | Military costs considered; analysis not arbitrary. | Plaintiff not likely to succeed on the merits. |
| whether an injunction is warranted considering national defense and timing. | Injunctive relief necessary to prevent harm. | Injunction would threaten national security and readiness; undue delay. | Balance of hardships/public interest weigh against injunction. |
Key Cases Cited
- Santa Barbara Applied Research, Inc. v. United States, 98 Fed.Cl. 636 (Fed. Cl. 2011) (in-sourcing protests cognizable; incumbent interests recognized)
- Rothe Dev., Inc. v. U.S. Dep’t of Def., 666 F.3d 336 (5th Cir. 2011) (prudential standing not fatal when procurement is involved)
- Vero Tech. Support, Inc. v. U.S. Dep’t of Def., 437 Fed.Appx. 766 (11th Cir. 2011) (prudential standing considerations discussed in procurement context)
- LABAT-Anderson, Inc. v. United States, 346 F.Supp.2d 145 (D.D.C. 2004) (statutory procedures govern government civilian/military cost analyses)
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed.Cir. 2008) (definition of procurement and “in connection with” procurement scope)