61 Fed. Cl. 559 | Fed. Cl. | 2004
OPINION AND ORDER
This case is before the Court on defendant’s and intervenor’s motions to dismiss, or in the alternative, for summary judgment, and plaintiffs cross-motion for summary judgment. Plaintiff, CW Government Travel (“Carlson”), filed a complaint in this action on May 23, 2003.
BACKGROUND
This case involves several contracts for government travel services. Counts I and II of plaintiffs amended complaint, though not explicitly styled as such, constitute a bid protest of contract number DAMT01-98-D1005 (“DTS DTR-6 contract”)
I. Counts I and II
On or about June 30, 1997, the Army’s Military Traffic Management Command (“MTMC”) issued a solicitation for a seamless, paperless, and complete travel management service both for Defense Travel Region 6 (“DTR 6”)
The CUI was to interface with numerous DoD external automated information systems that would link the various components of DoD’s travel management system to a new unified defense travel system (“DTS”). The Solicitation mandated that the contractor develop the CUI using commercial off-the-shelf products (“COTS”). While the Solicitation did not require offerors to propose a specific software or hardware configuration, the technology of the time limited the solutions that contractors could offer. For example, in 1997, there were no COTS items that provided web-based travel management services for Government travelers.
The solicitation contemplated a fixed-price requirements contract for a base period of five years, with three one-year options for: (1) a new travel management software system; (2) operation and maintenance of the CUI; and (3) DTS travel management services. Only two offerors responded to the solicitation. No provider of traditional travel services, including Carlson, responded. In May 1998, the DTS DTR-6 contract was awarded to TRW, whose successor is Northrop Grumman.
In late 2001, due to a myriad of performance problems, TRW and the Government entered into negotiations to “totally restructure” the contract.
About a year before the Government issued the modifications, on or about May 22, 2001, the Government issued a notice in the Commerce Business Daily (“CBD”) stating that the Government
intends to award a sole source modification to amend the structure of the current Defense Travel System (DTS) contract No. DAMT01-98-D-1005 with TRW, Fairfax, Va. to incorporate software development/engineering pricing features to allow for DTS CUI systems connectivity to the DOD Disbursing and Accounting Systems (DAD’s). This action will enable the negotiation and inclusion of additional Contract Line Items (CLIN’s) with cost reimbursement type pricing features to support PMO DAD’s requirements over the life of the contract.11
The CBD announcement identified an Army employee, Peggy Butler, and provided a hyperlink that allowed subscribers to “click here to contact the Contracting Officer.” The parties dispute whether the CBD announcement related to the restructure, or whether it related to a change embodied in Task Order 10, which was also issued on May 22, 2001.
On March 20, 2002, Northrop Grumman issued to Carlson, among others, a solicitation to act as a subcontractor on the DTS DTR-6 contract. Among the information
Carlson attempted to obtain information concerning the modifications at issue in this case by submitting a Freedom of Information Act (“FOIA”) request on November 15, 2002. The Government did not respond to Carlson’s request under FOIA until November 4, 2003, after litigation in this case had already commenced. While Carlson did file a FOIA request in November 2002, it admittedly did not make any direct communication with the DoD requesting information about the contemplated modifications, or stating Carlson’s view that if the DoD was considering a web-only system, the agency would have to issue a new solicitation and compete the contract.
II. Count III
On February 27, 2002, MTMC awarded contracts to Carlson to provide traditional travel services in Army Regions 1, 2, 4, 5, and National Capital Region. At issue in this case are the contracts relating to Army Regions 4 (DAMT01-02-C-0027) and 5 (DAMT01-02-C-0028). Army Region 4 is comprised of Connecticut, Delaware, Kentucky, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia. Army Region 5 is comprised of Arkansas, Kansas, Louisiana, Missouri, Nebraska, New Mexico, Oklahoma, and Texas.
Carlson’s contracts became effective on October 1, 2002, with a firm base period of twelve months and a series of eight six-month option periods, for a total contract period of five years. Each contract provided that “the Contractor has the exclusive right to provide all official commercial travel services at all sites covered in this contract.” Paragraph 1.1.1 provided that “upon the implementation of the Defense Travel Region 6 (DTR 6) contract ... Ft. Campbell, KY, Missouri, and Nebraska will be deleted from the respective regions and incorporated into the DTR 6 contract.” Paragraph 1.1.1.2 provided that:
The Army/other DoD agencies may exercise options included within the contract. However, if during the life of the contract, the DoD implements the Defense Travel System (DTS) and is able to provide the Army/other DoD agencies with travel services under the new system, some or all options may not be exercised under the contract ...
Paragraph 1.6.8 provided that:
At any time after the base period of this contract ..., the Government may identify any/or all workload in this contract to be deleted.
On November 8, 2002, Ruby Mixon, Contracting Officer (“CO”), sent a letter to Carlson in which the Government informed Carlson that “travel services support for the following states: Kentucky from Contract DAMT01-02-C-0027 and Missouri and Nebraska from Contract DAMT01-02-C-0028 will transition to Contract DAMT01-98-D1005 (DTR 6) effective February 24, 2003.”
Shortly after receiving the May 15 e-mail, on May 23, 2002, Carlson filed with this Court a complaint and a motion for preliminary injunction. Count III of Carlson’s amended complaint sought a declaratory judgment that it is the exclusive provider of traditional travel services for all the DoD sites identified in Carlson’s competitively awarded Army contract, and a declaratory judgment that Carlson’s Army travel services contracts, including the DoD sites in the States of Missouri, Nebraska, and Kentucky, do not require it to relinquish this work to Northrop Grumman and SATO Travel (Northrop Grumman’s subcontractor for traditional travel services under the DTS DTR-6 contract) under the DTS DTR-6 contract unless and until the CUI is operationally deployed throughout those states. Carlson further requested a declaratory judgment that Carlson’s travel services contract requires it to relinquish only Fort Campbell, Kentucky, as opposed to the entire State of Kentucky in the event that the DTS CUI is operationally deployed in the DTS DTR-6 region. Carlson sought a permanent injunction ordering the Army not to transfer the requirement to provide traditional travel services under any of Carlson’s Army contracts until and unless a DTS CUI is operationally deployed and able to provide all required travel services to the Army at those sites. During the course of this litigation, the Government and Carlson agreed that the Government would stay any transfers if Carlson withdrew its request for preliminary injunction, which Carlson did.
DISCUSSION
I. Counts I and II
A. Jurisdiction and Standard of Review for Bid Protest Actions
This court’s bid protest jurisdiction is set forth in the Tucker Act, which provides, in pertinent part:
Both the Unite[d] States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or to the award of a contract or any alleged violation of statute or regulation in connection1 with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an ac*567 tion without regard to whether suit is instituted before or after the contract is awarded.
28 U.S.C. § 1491(b)(1) (2000);
There was extensive discussion during oral argument regarding the proper standard of review.
B. Standard of Review for Motion to Dismiss
When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts alleged in the complaint. CC Distributors, Inc. v. United States, 38 Fed.Cl. 771, 774 (1997) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988)). The court is required to decide any disputed facts that are relevant to the issue of jurisdiction. Reynolds, 846 F.2d at 747. The standard for weighing the evidence presented by the parties when evaluating a motion to dismiss for lack of jurisdiction is as follows: “In passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, unchallenged allegations of the complaint should be construed favorably to the pleader.” Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); CC Distributors, 38 Fed.Cl. at 774. In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); CC Distributors, 38 Fed.Cl. at 774.
The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); CC Distributors, 38 Fed.Cl. at 774. The court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim that will entitle it to relief. CC Distributors, 38 Fed.Cl. at 774 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “Conelusory allegations unsupport
Dismissal under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate when the facts as alleged in the complaint do not entitle the plaintiff to a legal remedy. New York Life Ins. Co. v. United States, 190 F.3d 1372, 1377 (Fed.Cir.1999). In reviewing a motion to dismiss, the court accepts all well-pleaded factual allegations as true, and draws all reasonable inferences in favor of the plaintiff. Perez v. United States, 166 F.3d 1366, 1370 (Fed.Cir.1998). The case may be properly dismissed if plaintiff “can prove no set of facts in support of his claim that would entitle him to relief.” Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1131 (Fed.Cir.1998); Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000). RCFC 12(b)(6) specifically instructs, however, that where such a motion is filed and “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by RCFC 56.” RCFC 12(b); see also, Rotec Indus., Inc. v. Mitsubishi Corp., 215 F.3d 1246, 1250 (Fed.Cir.2000); Singleton v. United States, 54 Fed.Cl. 689, 691 (2002). In the instant case, both plaintiff and defendant rely on matters outside the pleadings. The Court has not excluded those matters and, therefore, will treat defendant’s motion to dismiss for failure to state a claim as a motion for summary judgment.
C. Standard of Review for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” RCFC 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact is one that will affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant for summary judgment bears the burden of demonstrating that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The fact that both parties have moved for summary judgment does not relieve the court of its responsibility to determine the appropriateness of summary disposition. Northrop Grumman, 50 Fed.Cl. at 457 (citing Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988)). It does not necessarily follow that if one motion is rejected, the other is supported. Prineville, 859,F.2d at 911. The court must evaluate each party’s motion on its own merits and resolve all reasonable inferences against the party whose motion is under consideration. Corman v. United States, 26 Cl.Ct. 1011, 1014 (1992).
D. Carlson’s Action is Timely and Not Barred by Laches
Defendant and intervenor contend that this Court lacks jurisdiction to entertain Carlson’s “untimely” claims set forth in Counts I and II of the amended complaint.
Defendant and Northrop Grumman next contend that Counts I and II of Carlson’s amended complaint should be barred by laches. Mere passage of time does not constitute laches. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1161 (Fed.Cir.1993). To establish the affirmative defense of laches, a party must show unreasonable and inexcusable delay
The application of laches is committed to the sound discretion of the court and should not be made by reference to “mechanical rules.” Aero Union, 47 Fed.Cl. at 686 (citing Aukerman, 960 F.2d at 1032). The burden of proof is on the party that raises the affirmative defense, here, the Government. Advanced Cardiovascular Sys., 988 F.2d at 1161. When raising the laches defense in the summary judgment context, the defendant must also establish that there are no genuine issues of material fact with respect to either delay or prejudice. Wanlass v. General Elec. Co., 148 F.3d 1334, 1337 (Fed.Cir.1998).
When a limitation on the period for bringing suit has been set by statute, laches will generally not be invoked to shorten the statutory period. Advanced Cardiovascular Sys., 988 F.2d at 1161 (citing Cornetta v. United States, 851 F.2d 1372, 1377-78 (Fed.Cir.1988) (en banc)). Jurisdiction of Counts I and II is based on 28 U.S.C. § 1491(b), which does not limit the time in which a bid protest action may be brought. Had Congress wanted to set a statute of limitations on bid protest actions, it would have done so. Because Congress did not so limit the jurisdiction of this Court to hear such actions, we would be reluctant to invoke laches except under extraordinary circumstances that are not present in this case.
1. Addition of Traditional Travel Services
As discussed above, supra at 564-65, Carlson knew or should have known as of March 20, 2002, that traditional travel services had been added to the DTS DTR-6 contract. Carlson did not file its complaint alleging that such an addition violated CICA until May 23, 2003-14 months later. In the context of a bid protest, 14 months is a lifetime. Having found that there was a delay, the Court must next “consider and weigh any justification offered by the plaintiff for its delay.” Aukerman, 960 F.2d at 1033. Some excuses that have been considered in the past include: wartime conditions, negotiations between the parties, and other concurrent litigation. LaForge & Budd Constr. Co. v. United States, 48 Fed.Cl. 566, 572 (2001) (internal citations omitted). Carlson has presented no legitimate justification for its unreasonable delay.
The Government and Northrop Grumman have not, however, met their burden of showing that they were prejudiced by plaintiffs delay in bringing a claim regarding the addition of traditional travel sendees to the DTS DTR-6 contract.
2. Modifications Relating to CUI Requirements and Payment Structure
The Government has not met its burden to pinpoint the time at which plaintiff knew or should have known about the modifications regarding the CUI requirements and alleged payment restructure. It is unclear whether the CBD announcement actually re
The Government was unable to show prejudice regarding Carlson’s delay in asserting its claim relating to the addition of traditional travel services, and it was unable to establish the date that Carlson should have known the extent of the CUI modification and alleged payment restructure. Thus, the claims set forth in Counts I and II of Carlson’s amended complaint are not barred by laches. Despite this finding, however, the passage of time between the DTS DTR-6 contract restructure and Carlson’s initiation of this" action is not wholly irrelevant in this case. The facts that are the basis of Government’s laches defense are significant in determining whether equitable relief is appropriate. See infra at 577-78.
E. Standing to Bring a Bid Protest Action
In order to maintain a bid protest action, a protestor must be an “interested party.” 28 U.S.C. § 1491(b)(1). The Tucker Act, however, does not define the term “interested party.” The United States Court of Appeals for the Federal Circuit, therefore, has adopted the definition of “interested party” set forth in CICA. Northrop Grumman, 50 Fed.Cl. at 455-56 (citing Am. Fed’n of Gov’t Employees v. United States, 258 F.3d 1294, 1300-02 (Fed.Cir.2001)). CICA defines an “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Id.; 31 U.S.C. § 3551(2). Where a claim is made that the Government violated CICA by refusing to engage in a competitive procurement, it is sufficient for standing purposes if the plaintiff shows that it would have competed for the contract had the Government publicly invited bids or requested proposals. CCL, Inc. v. United States, 39 Fed.Cl. 780, 790 (1997).
1. Carlson has Standing to Protest the Failure of CAC-W To Compete the Traditional Travel Services Work
Carlson is an interested party with standing to challenge the MTMC’s failure to compete the traditional travel services work. Carlson has competed for and won numerous DoD contracts for traditional travel services. See, e.g., Count III of Carlson’s amended complaint (a performance dispute regarding two contracts between Carlson and the Army for traditional travel services). The Government has not challenged Carlson’s standing to challenge the addition of traditional travel services to the DTS DTR-6 contract.
2. The Record is Unclear Regarding Whether Carlson has Standing To Protest the Change in Payment Structure and the Change in the CUI Requirements
The Government contends that to have standing to protest the modifications to the DTS DTR-6 contract relating to the CUI and the payment restructure, Carlson must prove that it possessed an e-travel system that met the requirements of the contract at the time of the restructure. The standard for being an interested party in these circumstances, however, is whether Carlson would have competed for the contract had the Government issued a solicitation. CCL, 39 Fed.Cl. at 790. Thus, the question is not whether Carlson could have provided a finished CUI in 2002. Rather, the inquiry is whether Carlson had substantially the same capability as Northrop Grumman possessed in 2002. Contrary to the Government’s position, it is irrelevant whether Carlson’s GSA e-travel system met the DTS DTR-6 contract requirements. The test is whether Carlson would have competed with Northrop Grumman to fulfill the CUI requirements.
F. Standard of Review for Judgment on the Administrative Record
Defendant entitled its motion as a “motion to dismiss, or in the alternative, for summary judgment.” At oral argument, however, counsel for the Government correctly represented that the proper procedural method for resolving the merits of the claims set forth in Counts I and II is a review of the administrative record pursuant to RCFC 56.1.
G. Traditional Travel Services
1. The Addition of Traditional Travel Services to the DTS DTR-6 Contract Was a Cardinal Change, and Failure To Compete That Work Violated CICA
The issues of whether traditional travel services were included in the original contract, and if not, whether the addition of such services constituted a cardinal change present questions of contract interpretation. Interpretation of the terms of a government contract is a question of law to be decided by the court. Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985). The intent of the parties controls contract interpretation, and the “primary function of the court is to ascertain the intent of the parties to a contract.” Northrop Grumman, 50 Fed.Cl. at 458; Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988). The contemporaneous interpretation of the parties, during contract performance and before interpretation of the contract became a subject of controversy, is of great, if not controlling, weight. Max Drill, Inc. v. United States, 192 Ct.Cl. 608, 619, 427 F.2d 1233, 1240 (1970). An interpretation that “gives a reasonable meaning to all parts of a contract will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result.” Northrop Grumman, 50 Fed.Cl. at 459. These principles apply to disputes over language found in solicitations for government contract work as well as in executed contracts. Id.
The contract defined “travel management services” as “traditional commercial travel services such as reservations and ticketing for all modes of travel, Government and commercial lodging reservations, rental car arrangements, ticket delivery, and support services.”
C-2.1.1 Travel management services for all authorized official travel performed by DoD travelers assigned to organizations in DTR 6.
C-2.1.2 A CUI which facilitates the official travel management services being solicited. Travel management services data shall be maintained in the CUI for all arrangements made through DTS, to include those made for travelers not covered by simplified entitlements. (Emphasis in original.)33
The Government and Northrop Grumman contend that because travel management services were defined in the contract as “traditional commercial travel services,” and the contractor was required to perform travel management services, the contract necessarily included traditional travel services in addition to travel services using the CUI. The Government’s contention, however, ignores section C-2.1.2, which appears directly after section C-2.1.1 in the contract. C-2.1.2 clearly requires that all travel services be conducted using the CUI. When read in context, the definition of travel management services as “traditional commercial travel services” is not intended to require that the contractor provide traditional travel services. Rather, the definition is intended only to describe the type of travel services that the contractor must perform using the CUI, e.g., reservations and ticketing for all modes of travel, Government and commercial lodging reservations, rental car arrangements, ticket delivery, and support services. The definition was an attempt to clarify that the travel services to be provided under the DTS DTR-6 contract would not differ from the services provided under traditional travel services contracts; only the method of providing those services would be different.
When Northrop Grumman submitted its proposal, it understood that it was required to use the CUI for all travel services. Recognizing that not all DoD travelers would be connected to the CUI, Northrop Grumman stated that its subcontractor, American Express, would:
Ensure the full utilization of the Defense Travel System for travelers, travel arrangers, and travel authorizers without automation capability. When an American Express travel counselor receives a request from a traveler or travel arranger by fax, telephone, e-mail, or in person, we will immediately initiate a trip record in the CUI and make the requested reservations in the [Computer Reservation System (“CRS”) ] using the same Travel Manager/CRS interface described above that connected travelers and AOs will use. Section 1.3.7.1 clarifies how trip records will be initiated in the CUI for Non-Connected Travelers.34
Not only does the contract language show that Northrop Grumman and the Government intended at the time of contract forma
An extension of the existing contract for a period of 15 months is essential as delaying, suspending, or even temporarily discontinuing travel services of Department of Defense military or civilian employees jeopardizes the accomplishment of their assigned missions.39
If Northrop Grumman’s DTS DTR-6 contract had provided for traditional travel services, there would have been no need to extend SATO Travel’s DTR-3 contract on a sole source basis-the Government could have simply acquired the travel services from Northrop Grumman.
A comparison of the original contract and the contract as altered by Modification P00029 further bolsters Carlson’s position. The Modification deleted entirely the original Functional Requirements Document that required that all travel management services be performed using the CUI.
Despite the position of the Government and Northrop Grumman in this litigation, in a prior declaration, Karen Williams, a TRW employee, stated that:
The Government also requested that TRW and its subcontractor submit a proposal to provide traditional travel services in DTR 6, while the DTS CUI was being set up and tested. The provision of traditional travel services was not originally included in TRW’s prime contract, or AMEX’s subcontract.44
This contemporaneous statement and the course of conduct described above are strong evidence that the original DTS DTR-6 con
CICA demands “full and open competition through the use of competitive procedures.” 41 U.S.C. § 253(a)(1)(A). Modifying the contract so that it materially departs from the scope of the original procurement violates CICA by preventing potential bidders from participating or competing for what should be a new procurement. CESC Plaza Ltd. P’ship v. United States, 52 Fed.Cl. 91, 93 (2002) (citing AT & T, 1 F.3d at 1204). CICA, however, does not prevent modification of a contract by requiring a new bid procedure for every change. AT & T, 1 F.3d at 1205. CICA contains no standard for determining whether a modification of an existing contract requires a new competition or falls within the scope of the original procurement. Id. The Court of Claims announced the following standard for determining whether a contract modification is within the scope of the underlying contract:
“[A] cardinal change ... occurs when the government effects an alteration in the work so drastic that it effectively requires the contractor to perform duties materially different from those originally bargained for. By definition then, a cardinal change is so profound that it is not redressable under the contract, and thus renders the government in breach.”
AT & T, 1 F.3d at 1205 (quoting Allied Materials & Equip. Co. v. United States, 215 Ct.Cl. 406, 409, 569 F.2d 562, 563-64 (1978)).
The question in this case is not whether the Government modifications amounted to a breach of contract. Rather, the inquiry focuses on whether the Government modifications changed the contract so profoundly as to circumvent the statutory requirement of competition. Id. Related to the cardinal change doctrine, this case poses the question whether the modification is within the scope of the competition conducted prior to award of the original contract. Id. A modification generally falls within the scope of the original procurement if potential bidders would have expected it to fall within the contract’s changes clause. Id.; see also CESC Plaza, 52 Fed.Cl. at 93 (“Another factor is whether the modification substantially changes ‘the type of work, performance period, and costs as between the original contract and modified contract’ ”).
The addition of traditional travel services to the DTS DTR-6 contract was a cardinal change. In view of the facts and contract language set forth above, a potential contractor bidding on the original contract to deploy and provide travel services using a CUI would not have anticipated that it could also be called upon under the changes clause to provide traditional travel services. This is especially true because at the time of contract formation there were already contracts in place for traditional travel services. Furthermore, no provider of traditional travel services bid on the original contract. The industry view, therefore, was that such services were not within the scope of the original procurement. The addition of traditional travel services significantly altered the type of work to be performed under the contract. Accordingly, MTMC’s failure to issue a competitive solicitation for the traditional travel services added by Modification P00029 violated CICA.
2. ITEC-k Must Compete the Traditional Travel Services Work That Was Added by Modification P00029
Having found that failure to compete the traditional travel services work violated CICA, we must determine whether plaintiff is entitled to the equitable relief it seeks. Carlson has requested in Count II of its amended complaint that this Court issue a permanent injunction ordering the Army to direct Northrop Grumman to cease performance of the traditional travel services CLINs under the restructured DTS DTR-6 contract and immediately competitively reprocure the requirements to provide traditional travel services contained in the modified DTS DTR-6 contract. When a modification sim
In a bid protest case, the Court of Federal Claims has jurisdiction to award declaratory and injunctive relief; monetary relief shall be limited to bid preparation and proposal costs. 28 U.S.C. § 1491(b)(2). The Court of Appeals for the Federal Circuit, however, has reiterated that equitable powers “should be exercised in a way [that] best limits judicial interference in contract procurement.” Parcel 49C Ltd. P’ship v. United States, 31 F.3d 1147, 1153 (Fed.Cir.1994) (quoting United States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (Fed.Cir.1983)). Carlson did not submit a bid related to the DTS DTR-6 contract, so bid and proposal costs are not at issue. The only potential remedy available to Carlson is injunctive relief.
Injunctive relief is an extraordinary remedy. CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1581 (Fed.Cir.1983). A court, however, may issue a permanent injunction if plaintiff establishes that: (1) it has achieved actual success on the merits; (2) it will suffer irreparable injury if injunctive relief is not granted; (3) the harm to plaintiff if an injunction is not granted outweighs the harm to the Government if an injunction is granted; and (4) granting the injunction serves the public interest. See FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993); At Ghanim Combined Group v. United States, 56 Fed.Cl. 502, 519-20 (2003); Interstate Rock Products, Inc. v. United States, 50 Fed.Cl. 349, 354 (2001). No one factor, taken individually, is necessarily dispositive. FMC, 3 F.3d at 427. Case law in this court has held that a plaintiff must demonstrate its right to injunctive relief by clear and convincing evidence. MCS Management, Inc. v. United States, 48 Fed.Cl. 506, 511 (2001) (citing Bean Dredging Corp. v. United States, 22 Cl.Ct. 519, 522 (1991)).
a. Irreparable Harm
A party suffers irreparable harm when there is no adequate remedy at law. Overstreet Elec. Co. v. United States, 47 Fed.Cl. 728, 744 (2000). The loss of opportunity to compete for a contract and secure any resulting profit has been recognized as constituting “significant harm.” Red River Serv. Corp. v. United States, 60 Fed.Cl 532, 549 (2004) (citing United Int’l Investigative Servs., Inc. v. United States, 41 Fed.Cl. 312, 323 (1998)). As a result of CAC-W’s actions, Carlson was not able to compete for the traditional travel services contract. Carlson has competed for and won numerous DoD contracts for traditional travel services. The fact that Carlson was unable to compete for the traditional travel services added to the DTS DTR-6 contract constitutes irreparable harm.
b. Balance of Hardships
The balance of hardships element “requires a consideration of the harm to the government.” Red River Serv., 60 Fed.Cl. at 549 (quoting Overstreet, 47 Fed.Cl. at 744). The harm to the Government if the injunction is granted is minimal because there are several providers of traditional travel services that would be able to bid on the contract. See Bean Dredging Corp. v. United States, 19 Cl.Ct. 561, 583 (1990) (in granting a permanent injunction “the relative harm to
c. Effect on the Public Interest
It is well established that there is an overriding public interest in preserving the integrity of the federal procurement process by requiring government officials to follow procurement statutes and regulations. See, e.g., United Int’l Investigative Servs., 41 Fed.Cl. at 323. Requiring ITEC-4 to re-solicit the traditional travel services work will serve the public interest by ensuring fair and open competition in public contracts.
The original DTS DTR-6 contract did not include traditional travel services, and the addition of such services pursuant to Modification P00029 amounted to a cardinal change. CAC-W violated CICA by failing to compete the traditional travel services work. Carlson has shown, by clear and convincing evidence,
Accordingly, the Court will grant plaintiffs motion for summary judgment on Counts I and II of plaintiffs amended complaint to the extent plaintiff seeks an order enjoining Northrop Grumman, and/or its subcontractor, from continuing performance of those portions of the DTS DTR-6 contract relating to the provision of traditional travel services and directing defendant to terminate those portions of the DTS DTR-6 contract and to recompete that work. In so doing, the Court, in order to ensure that it gives “due regard to the interests of national defense and national security and the need for expeditious resolution of the action,” 28 U.S.C. § 1491(b)(2), will direct the parties to file by August 6, 2004, a proposed timetable and description of the activities necessary to effect the orderly implementation of the Court’s Orders as described above. The Court will schedule a status conference for August 11, 2004 at 10:00 a.m. to consider the parties’ proposed timetable as well as the course of further proceedings in the case. The Court’s Order will provide that in the event the parties are unable to agree upon a joint proposed timetable they shall file separate proposals on or before August 6.
H. CUI and Payment Structure
1. There are Genuine Issues of Material Fact Regarding Whether the Changes to the Payment Structure of the DTS DTR-6 Contract and the Changes in the Requirements of the CUI Constituted Cardinal Changes
There are two main changes at issue with respect to theses aspects of Carlson’s claim: 1) the alleged changes to the payment structure from a firm fixed-price contract to a cost reimbursement contract; and 2) the change from a client/server mode CUI to a web-based CUI. These issues are fact intensive and there are several questions that the Court must answer in order to determine whether Carlson should prevail:
1) Was the Government’s payment to Northrop Grumman at the time of the restructure a change in the payment structure, or was it simply payment for work completed and consideration for Northrop Grumman agreeing to the restructure?
2) If the payment was a change in the payment structure-from firm fixed-price to cost reimbursement-did the change impermissibly shift the risk of contract performance from the contractor to the Government?
3) If there was an impermissible shift of risk, did it constitute a cardinal change?
4) Did the original DTS DTR-6 contract permit Northrop Grumman to provide a web-based CUI instead of a client/server mode CUI?
5) If it did not, did the deletion of the client/server mode requirement and the*577 shift to a web-based system constitute a cardinal change?
The record as it currently stands is incomplete and does not contain sufficient information for the Court to answer the above questions. The parties filed a Consolidated Joint Statement of Facts on May 10, 2004. That document is approximately 175 pages long, and almost every fact is contested. Both parties have submitted declarations, but the declarants have not been deposed. In this complex case, the Court is not inclined to conduct a trial on declarations. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Neither party has demonstrated an absence of genuine issues of material fact, and neither party is entitled to judgment as a matter of law on these aspects of plaintiffs claims.
2. Even if the Changes to the Payment Structure and CUI Were Cardinal Changes, Carlson is Not Entitled to Injunctive Relief
Notwithstanding the existence of genuine issues of material fact with respect to the merits of these aspects of plaintiffs claims, the Court has concluded that even if Carlson has standing and were to succeed on the merits, Carlson would not be entitled to a remedy under these aspects of its claims set forth in Counts I and II. Accordingly, in granting in part defendant’s and Northrop Grumman’s motions for summary judgment, and denying in part plaintiffs motion for summary judgment, we need not reach a decision on the merits of plaintiffs claims that the changes to the payment restructure and the CUI requirements constituted cardinal changes. See Reebok Int'l Ltd. v. J. Baker, Inc., 32 F.3d 1552 (Fed.Cir.1994).
In Reebok, the Court of Appeals for the Federal Circuit considered an appeal of a district court’s denial of a motion for preliminary injunction. The district court held that plaintiff had failed to establish irreparable harm. In so finding, the district court made no determination regarding plaintiffs likelihood of success on the merits. Id. at 1555. The Court of Appeals determined that the district court erred. A movant that clearly establishes likelihood of success on the merits receives the benefit of a presumption of irreparable harm. Id. at 1556. In the absence of a finding regarding likelihood of success on the merits, it was improper for the district court to not give plaintiff the benefit of the presumption of irreparable harm. Id. This error was ultimately found to be harmless because even presuming irreparable harm to plaintiff, defendant presented sufficient evidence to rebut the presumption. Id. at 1559.
Despite the finding of error, however, the Court of Appeals stated that “[t]his is not to say, however, that a trial court, before denying a preliminary injunction motion, must always make a finding on a movant’s likelihood of success to avoid vacatur____” Id. at
1557. The Federal Circuit recognized that:
District judges are overburdened and need flexibility to operate efficiently. They deserve tolerance by reviewing courts so they can tailor procedures of adjudication to the case at hand. We do hold, however, that if, in adjudicating irreparable harm, the district court has declined to make findings on likelihood of success, the court must give the movant the benefit of the presumption before denying a motion requesting a preliminary injunction.
Id.
While we have determined that genuine issues of material fact exist as to whether the changes to the payment structure and CUI requirements were cardinal changes, we have, for purposes of this analysis, assumed that Carlson has succeeded on the merits of those aspects of its claims as set forth in Counts I and II. Additionally, as set forth below, we have assumed that Carlson has suffered irreparable harm.
a. Irreparable Harm
A party suffers irreparable harm when there is no adequate remedy at law. Overstreet Elec., 47 Fed.Cl. at 744. The loss of opportunity to compete for a contract and secure any resulting profit has been recognized as constituting “significant harm.” Red River Serv., 60 Fed.Cl. at 549 (citing United Int'l Investigative Servs., 41 Fed.Cl. at 323). Thus, assuming that Carlson would have bid on the restructured DTS DTR-6
b. Balance of Hardships
The balance of hardships element requires “a consideration of the harm to the government.” Red River Serv., 60 Fed.Cl. at 549 (quoting Overstreet Elec., 47 Fed.Cl. at 744). This is where Carlson’s claim for injunctive relief regarding the payment restructure and the changes to the CUI requirements fails.
c. Effect on the Public Interest
Carlson also fails on this factor. It is well established that there is an overriding public interest in preserving the integrity of the federal procurement process by requiring government officials to follow procurement statutes and regulations. See, e.g., United Int’l Investigative Servs., 41 Fed.Cl. at 323. “ ‘It is equally clear, however, that a procuring agency should be able to conduct procurements without excessive judicial infringement upon the agency’s discretion.’” Software Testing, 58 Fed. Cl. at 538 (quoting Aero Corp., S.A. v. United States, 38 Fed.Cl. 237, 242 (1997)). In Software Testing, the Court denied plaintiffs motion for preliminary injunction, in part, because the public interest would not be served by granting the injunction:
Except in the most extraordinary circumstances, judicial infringement on the procurement process in the form of preliminary relief would be inappropriate where, as here, the plaintiff urging that a contract be suspended and an apparent awardee deposed waits an inordinate period of time-here nearly until the contract is completed-before pressing its claim.
Id. Like the contract in Software Testing, Northrop Grumman’s DTS DTR-6 contract is substantially complete. At the time that Carlson filed its complaint, the contract was in the fifth year of performance of an eight-year contract. Furthermore, Carlson did not file its complaint until 14 months after the Government issued the modifications that are the subject of this dispute. In fact, it appears from the record that the precipitating event that led Carlson to initiate this action had nothing to do with Counts I and II. Rather, it was the May 15 e-mail regarding the Carlson’s Army contracts that prompted Carlson to file its complaint in May 2003.
The overwhelming public interest here is in avoiding further delay to this project. See CESC Plaza, 52 Fed.Cl. at 101. Operational deployment was to have occurred worldwide by September 2001. It is now July 2004, and that goal has not yet been achieved. The resolicitation sought by plaintiff would send the most challenging and complex aspects of the project back to the drawing board. If these aspects of the contract are terminated, the services currently being provided by the
Having found that, even assuming standing, success on the merits, and irreparable harm, Carlson is not entitled to equitable relief regarding the payment restructure and the changes to the CUI requirements, this Court need not conduct a trial on the issue of whether the payment restructure and changes to the CUI requirements constituted cardinal changes such that the work should have been competed pursuant to CICA. See Reebok, 32 F.3d 1552.
II. Count III
The Court has jurisdiction to consider Count III of Carlson’s amended complaint, challenging the Government’s interpretation of Carlson’s Army contracts under the CDA. Count III of Carlson’s amended complaint challenges two facets of the Government’s interpretation of its Army contracts relating to the removal of certain services from the contracts following deployment of the DTS CUI. First, Carlson challenges the Army’s interpretation that it can remove the entire state of Kentucky from the contract. Second, Carlson challenges the Army’s interpretation that it can remove the services prior to a determination that the DTS CUI is fully operational. Both of these challenges were the subject of a claim by Carlson to the Contracting Officer and a final decision by the Contracting Officer.
A. The Court has Jurisdiction Over the Claim Set Forth in Count III
The Tucker Act defines the jurisdiction of the Court of Federal Claims to hear disputes arising under the CDA. The Act specifically provides for jurisdiction over “a dispute concerning ... nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of [the CDA].” 28 U.S.C. § 1491(a)(2). A prerequisite to jurisdiction under the Tucker Act is the submission of a claim to the Contracting Officer and a final decision by the Contracting Officer on that claim. Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1264 (Fed.Cir.1999). The Federal Acquisition Regulation (“FAR”) defines a “claim” as a “written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising from or relating to the contract . . . .” 48 C.F.R. § 33.201.
Carlson’s November 26 letter meets the definition of a claim as set forth in the FAR. The letter is a written demand or assertion of Carlson’s interpretation of its rights under the contract. The Government contends that the assertions made by Carlson in Count III of its amended complaint are different from those made in the November 26 letter. The Government claims that Carlson “did not assert a specific entitlement to relief from any transfer prior to the deployment of the CUI ....”
The Government further alleges that Carlson did not certify the claim. Certification is necessary, however, only when a contractor is making a monetary claim in excess of $100,000. 41 U.S.C. § 605(c)(1); 48 C.F.R. §§ 33.207(a) and 52.233-1(d)(2)(I); see also Alliant Techsystems, 178 F.3d at 1267. Because Carlson’s claim is for an interpretation of contract terms, the certification requirement does not apply.
The Government also challenges the Court’s jurisdiction on the ground that the Contracting Officer did not issue a final decision. The Government cites Alliant Techsystems for the proposition that the January 10, 2003 letter is not a final decision because it does not state that it is a final decision, nor does it inform the contractor of its right to appeal the decision. 178 F.3d at 1266. The Court in Alliant Techsystems, stated, however:
the absence of a statement in the contracting officer’s letter acknowledging that the letter constituted a final decision from which Alliant was entitled to appeal is not fatal to Alliant’s action. A letter can be a final decision under the CDA even if it lacks the standard language announcing that it constitutes a final decision.
Id. at 1267 (citing Placeway Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed.Cir.1990)). The January 10, 2003 letter was a final decision. There was no indication in that letter that the Contracting Officer intended to enter into discussions with Carlson about this issue. Additionally, the May 15, 2003 e-mail reiterated the finality of the Government’s decision to transfer the contracts after September 30, 2003.
The Government contends that when the Contracting Officer delayed the transfer date until September 30, 2003, Carlson’s CDA claim became moot. “The burden of
The Contracting Officer never stated that she agreed with Carlson’s interpretation of the contract terms. To the extent that the agency decided on January 31, 2003, to defer the transfer until September 30, 2003,
B. Carlson’s CDA Claim is Ripe for Judicial Review
The Government next contends that Carlson’s CDA claim is not ripe for judicial review because the Government has not yet transferred the contract work. The Government asserts that if, at a later date, the Government improperly transferred the work, Carlson would have an adequate remedy at law, such as termination for convenience remedies or money damages for breach of contract.
The fact that the Army has not yet transferred the work does not prevent this Court from determining under what circumstances it may do so. The plain language of the CDA anticipates that parties will challenge the Government’s interpretation of a contract during contract performance. Both the CDA and the Disputes Clause in the FAR provide that pending a final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer’s decision. 41 U.S.C. § 605(b); 48 C.F.R. § 52.233-1. By referring to the requirement that performance be continued, “pending” a final resolution of the contractor’s rights, the statute and the disputes clause contemplate that, while performance is ongoing, the contractor may seek a final resolution of its rights by an action in the Court of Federal Claims. Alliant Techsystems, 178 F.3d at 1266-67.
The CDA recognizes that contractors do not have to wait for the actual contract violation to occur. The disputes clause “does not impose [a] ... requirement on the contractor to wait until performance is complete before filing a claim for relief from the contracting officer.” Alliant Techsystems, 178 F.3d at 1266. In fact, to “hold that the disputes clause bars any pre-performance claim seeking an interpretation of contract terms would render largely meaningless those portions of the definition of claim that refer to requests for nonmonetary relief.” Id. (holding that contractor could bring claim, prior to per
In summary, Carlson’s CDA claim is properly before this Court. Carlson submitted a claim to the Contracting Officer. Because it was a claim for contract interpretation, there was no requirement that it be certified. Carlson’s claim addressed the same issues that are before the Court in this case. The Contracting Officer issued a final decision. The Contracting Officer’s voluntary decision to delay the transfer date of the work does not render Carlson’s claim moot. Finally, the claim is ripe for judicial review.
C. The Government is Not Entitled to Summary Judgment on Count III
The Government, almost as an aside, requests that the Court dismiss Count III on the merits. The Government premises its entitlement to such relief on the fact that the DTS DTR-6 contract “explicitly encompasses unassisted travel services. Accordingly, the facilities can be transferred.”
CONCLUSION
For the reasons discussed above, the Court ORDERS that plaintiffs motion for summary judgment shall be, and hereby is, GRANTED with respect to plaintiffs claim set forth in Counts I and II, relating to the addition of traditional travel services to the DTS DTR-6 contract. Subject to the provisions of the following paragraph, defendant, Northrop Grumman, and/or its subcontractor, are enjoined from continuing performance of the traditional travel services CLINs under the restructured DTS DTR-6 contract. The Government shall terminate those portions of the DTS DTR-6 contract and reeompete that work.
The parties shall file by August 6, 2004, a proposed timetable and description of the actions necessary to effect the orderly implementation of the Court’s orders as described in the preceding paragraph. The Court ORDERS that the parties shall appear for a status conference on Wednesday, August 11, 2004 at 10:00 a.m. to consider the parties’ proposed timetable as well as the course of further proceedings in the case. In the event the parties are unable to agree upon a joint proposed timetable, they shall file separate proposals on or before August 6.
The Court ORDERS .that defendant’s and defendant-intervenor’s motions to dismiss, or in the alternative, for summary judgment, shall be, and hereby are, DENIED with respect to plaintiffs claim set forth in Counts I and II, relating to the addition of traditional travel services to the DTS DTR-6 contract.
The Court ORDERS that plaintiffs motion for summary judgment shall be, and hereby is, DENIED with respect to plaintiffs claims, set forth in Counts I and II, relating to the payment restructure and changes to the requirements of the CUI.
The Court ORDERS that defendant’s and defendant-intervenor’s motions for summary judgment shall be, and hereby are, GRANT
The Court ORDERS that defendant’s motion to dismiss Count III, or in the alternative, for summary judgment on Count III shall be, and hereby is, DENIED.
IT IS SO ORDERED.
. Plaintiff filed a motion for leave to file an amended complaint on November 14, 2003. By Order of the Court, plaintiff's amended complaint was filed on April 1, 2004. Despite the delay in plaintiff’s amended complaint being filed, the cross-motions for summary judgment, as well as defendant's and intervenor’s motions to dismiss, address the allegations contained in the amended complaint, rather than plaintiff's original complaint.
. DTS DTR is the acronym for Defense Travel System Defense Travel Region. In addition to DTS travel regions, there are also Army travel regions. These regions are designated separately. Sometimes a DTS travel region will overlap an Army travel region. Transcript of Proceedings, CW Gov’t Travel, Inc. v. United States, No. 03-1274 at 158 (Fed.Cl. May 18, 2004) ("Tr.’’). Thus, some states are in DTS DTR-6, but in Army DTR-3, 4, or 5.
. DTS DTR-6 consists of military installations in Michigan, Wisconsin, North Dakota, South Dakota, Kentucky, Missouri, Illinois, Nebraska, Minnesota, Iowa, and Indiana. V 88. The parties did not file an administrative record, as such. Rather the Government provided the administrative record to plaintiff in discovery, and the parties represented that the contents of the administrative record were before the Court as appendices to the parties’ cross-motions. Tr. at 23-26. Because each party submitted an appendix with its own numbering system, there is no uniform system of citation to the documents in the administrative record. Plaintiff's documents are labeled with a prefix "V,” whereas defendant's documents do not appear to contain such a prefix. The Court will identify the documents in the same manner that they were identified by the parties.
. DTS DTR-6 contract, Attachment 5 "Terms and Definitions,” Pl.’s App. Tab 3, V 2480.
. Def.’s Answer to Amended Complaint ("Def.’s Answer”) ¶ 22.
. Def.’s Answer ¶ 21.
. Because many of the documents involved in this case refer to "TRW,” the Court will use these company names interchangeably.
. Def.'s Answer ¶ 29.
. Pl.'s App., Tab 53, V 1484.
. Def.’s App., Attachment 10, p. 64.
. See V 281.
. Def.’s App., Tab II, 16, p. 127.
. Id. at Tab II, 17, p. 142
. Tr. at 94-95.
. Def.’s App. at 251.
. Id. at 253-256.
. Id.
. Id. at 258. Contracting Officer Jackie Robinson-Burnette drafted the January 10, 2003 letter.
. Def.’s App. at 260.
. Id.
. Id. at 262.
. Tr. at 160.
. As of January 1, 2001, this court assumed sole jurisdiction over bid protest actions. Pub.L. 104-320, § 12(d), 110 Stat. 3870, 3875 (1996) ("(d) SUNSET. — The jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) of title 28, United States Code (as amended by subsection (a) of this section) shall terminate on January 1, 2001 unless extended by Congress.").
. Tr. at 20-23, 85, 117-121.
. Def.’s Mot. at 25.
. For a thorough analysis of which parly bears the burden to show prejudice, see LaForge, 48 Fed.Cl. at 572.
. Tr. at 25. The administrative record in this case is comprised of the documents submitted to the Court in the parties’ respective appendices. Tr. at 23-24. See supra n. 4.
. For a more comprehensive description of the respective roles of the court and the agency in connection with a motion for judgment on the administrative record, see Bannum, Inc. v. United States, 60 Fed.Cl. 718, 726 n. 9 (2004); PGBA, LLC v. United States, 60 Fed. Cl. 196, 204 n. 11 (2004); Tech Systems, Inc. v. United States, 50 Fed.Cl. 216, 222 (2001).
. V 88.
. Id.; Contract § C-1.3.
. Attachment 5, "Terms and Definitions,” V 248 O.
. V 88-89.
. V 1718a.
. Tr. at 33-35.
. Army DTR-3 includes Army, Air Force and Defense locations in the states of Illinois, Indiana, Iowa, Michigan, Minnesota, North Dakota, South Dakota, and Wisconsin. V 1231. As stated supra at n. 4, DTS DTR-6 includes Michigan, Wisconsin, North Dakota, South Dakota, Kentucky, Missouri, Illinois, Nebraska, Minnesota, Iowa, and Indiana.
. Consolidated Joint Statement of Facts at 76-77.
. V 1231-1257.
. V1231-1232.
. V 1058.
. V 1079-1143.
. Pl.'s App., Tab 13, V 1081.
. Id., V 1093-1143.
. Pl.'s App., Tab 56, V 1497.
. But see Bannum, 60 Fed.Cl. at 723-24, for an explanation that the proper standard of proof for establishing the predicates for injunctive relief in a bid protest case is preponderance of the evidence rather than clear and convincing evidence. Because the standard does not affect the outcome of any aspect of this case, we have not considered the question further. See Sisselman v. Smith, 432 F.2d 750, 754-55 (3rd Cir. 1970)(with respect to the question whether the applicable scope of review under Section 10(e) of the APA, 5 U.S.C. § 706, was “arbitrary and capricious" or "unsupported by substantial evidence," the court determined that it "need not delineate which is the appropriate test because ... the evidence supports [defendant] under either”); Natural Res. Def. Council, Inc. v. United States Envtl. Prot. Agency, 725 F.2d 761, 767 (D.C.Cir.l984)("We do not find it necessary in this case to resolve this dispute nor to attempt to harmonize the various precedents. We would affirm the agency’s conclusion ... even if we were to adopt the least deferential standard of review”).
. As indicated earlier, because Carlson has met the clear and convincing evidence standard, it has, a fortiori, met the preponderance of the evidence standard. See supra n. 45.
. Carlson has failed to prove its entitlement to injunctive relief on these aspects of its claims set forth in Counts I and II under either the preponderance of evidence standard or the clear and convincing evidence standard. See supra n. 45.
. Tr. at 60.
. See Tr. at 160, 212, 228.
. Tr. at 61.
. See, e.g., Tr. at 108-09 (prospective offerors would have to customize their products to meet the specific needs of the DTS DTR-6 contract; even contractors with the capability to provide a CUI would not develop agency-specific systems until they were awarded a contract for a particular agency).
. Tr. at 33; see also Pl.'s App. at V 1155, 1168.
. Def.'s Mot. at 33.
. In exchange for Carlson withdrawing its motion for a preliminaiy injunction, the Government agreed to stay the transfer of work under Carlson's contracts pending resolution of Count III of plaintiff's amended complaint.
. Def.’s Mot. at 37.
. For a more extensive discussion of Alliant Techsystems and the effect of "prudential” concerns on the consideration of nonmonetary CDA claims, see Tiger Natural Gas, Inc. v. United States, 61 Fed.Cl. 287, 291-93 (2004).
. Def.'s Mot. at 51.
