Ncl Logistics Company v. United States, 109 Fed. Cl. 596

NCL challenged Army NAT procurement after being found nonresponsible and excluded from awards in Afghanistan trucking; AR included extensive prior HNT contract issues and NCL’s corrective actions; Army relied on NCL Holdings’ vendor vetting rating and multiple adverse performance events; alleged improper vendor vetting and de facto debarment raised due process concerns in a war-zone context; court granted AR judgment for the Army and granted limited AR supplementation.
NCL’s HNT performance included cure notices, failures to meet arming and ITV requirements, and alleged forged mission sheets and transponder stacking; corrective actions were undertaken but deemed insufficient to overcome nonresponsibility.
“NCL” reliance on a vendor vetting process tied to its ineligibility; the vetting rating functioned as a de facto debarment with national security considerations limiting due process.
Anham, a comparator contractor, was deemed responsible under different vetting and performance circumstances, supporting the agency’s disparate-treatment arguments and rationality of NCL’s nonresponsibility.
Court allowed limited supplementation of the AR to include certain HNT correspondence and a revised final decision, while denying other ASBCA materials and GMT debarment materials.
Overall, the court held the Army’s responsibility determination reasonable and denied NCL’s bid protest relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether vendor vetting created de facto debarment.	NCL was deprived of due process; vetting unlawfully barred future DoD awards.	Vetting was rational, national security outweighed due process in this context.	Vet ting reasonable; no due process violation given national security concerns.
Whether the debriefing procedure complied with vendor vetting rules.	NCL should have been notified of rejection as an apparent successful offeror.	NCL was not an apparent successful offeror; notice not required.	No requirement to notify NCL of rejection under the vendor vetting rules.
Whether reliance on NCL Holdings’ vetting rating was irrational.	Data were outdated and unreliable for responsibility.	Agency properly relied on vetting data per FRAGO and applicable regulations.	Rational and supported by record; not arbitrary.
Whether the nonresponsibility determination was pretextual or discriminatory.	Blacklisting of HNT incumbents; bad faith evidence.	Evidence supports a legitimate, cumulative assessment; no disparate treatment.	No clear and convincing showing of bad faith; rationale upheld.
Whether AR supplementation was appropriate.	Need post-decision documents to reviewability.	Supplementation limited to cases where omission impedes review; not all materials proper.	Partially granted; limited AR supplementation allowed.

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (contracting officers have broad discretion in responsibility determinations; must have rational basis)
Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234 (Fed. Cir. 2002) (clear and convincing standard for bad-faith claims in bid protests)
Old Dominion Dairy Prods., Inc. v. Sec’y of Defense, 631 F.2d 953 (D.C. Cir. 1980) (due process in debarment contexts; liberty interest at stake)
Ettefaq-Meliat-Hai-Afghan Consulting, Inc., 106 Fed. Cl. 429 (2012) (considerations for evaluating cumulative performance deficiencies)
Ashbritt, Inc. v. United States, 87 Fed. Cl. 344 (2009) (supplementation of the AR to understand technical information; acknowledges reviewability)