Case Information
*1 In the United States Court of Federal Claims No. 14-870C
(Filed: March 18, 2015) ) Post-award bid protest; subject matter HYPERION, INC., ) jurisdiction; conversion of a motion
) to dismiss or for summary judgment Plaintiff, ) into a motion for judgment on the ) administrative record; new transactional v. ) facts obviating claim preclusion; the ) “International Agreement” exception to UNITED STATES, ) the Competition in Contracting Act; 10
) U.S.C. § 2304(c)(4); FAR § 6.302-4; Defendant. ) DFARS § 206.302-4; Defense Security ) Cooperation Agency Manual Cyrus E. Phillips IV, Albo & Oblon L.L.P., Arlington, Virginia, for plaintiff.
Ryan M. Majerus, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the briefs were Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Kirk T. Manhardt, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Cameron Edlefsen, Trial Attorney, U.S. Army Legal Services Agency, Fort Belvoir, Virginia.
OPINION AND ORDER
LETTOW, Judge.
This post-award bid protest reprises an earlier protest in which the protestor was
successful.
Hyperion, Inc. v. United States
,
Pending before the court is the government’s motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”), or, in the *2 alternative, motion for summary judgment pursuant to RCFC 56. Mot. to Dismiss or, in the Alternative, Mot. For Summary Judgment (“Def.’s Mot.”), ECF No. 18. The government contends that Hyperion’s complaint is procedurally improper because plaintiff failed to seek bid preparation costs in its initial bid protest. Def.’s Mot. at 2. Additionally, the government avers that the Army complied with Department of Defense regulations in awarding the second contract because the Kingdom of Jordan acted to select Technical Communications as the sole-source awardee of a Foreign Military Sale under the Foreign Assistance Act, 22 U.S.C. § 2151-2431k, particularly 22 U.S.C. § 2344, and the Arms Export Control Act, 22 U.S.C. §§ 2751-2799aa-2, particularly 22 U.S.C. § 2762. See Def.’s Mot. at 14-23. Finally, the government claims that the amount of costs requested by Hyperion is improper and not supported by the required documentation. Id. at 3.
As the government avers, “the circumstances of this case are unique” and do not fit easily within an established template for analysis. Def.’s Mot. at 10.
FACTS
As initially structured, the Army’s procurement was a small business set-aside subject to
48 C.F.R. (“FAR”) § 15.101-2, requiring that the lowest-priced-technically-acceptable proposal
would receive the award.
Hyperion I
,
After the Army notified the Kingdom of Jordan of the court’s decision, Def.’s Mot at 23, Jordan submitted a Letter of Request directing a sole-source procurement to Technical Communications. A 47 (Letter from Brig. Gen. Ali Ahmad AL-Rawashdeh to Military Assistance Program, American Embassy, Amman, Jordan (June 1, 2014)). [3] The letter listed two reasons for the Kingdom of Jordan’s decision: (1) Technical Communications has extensive experience working in the Middle East; and (2) it is a member of the on-ground engineering and installation team that had previously completed earlier portions of the five-part communications project. Id. On July 24, 2014, the government’s Security Assistance Management Directorate approved a memorandum in lieu of justification and approval announcing that “[a]ny resultant contractual action will be awarded to T[echnical Communications]” and pricing would no longer be on a Firm-Fixed-Price Completion Basis. A 48-49 (Mem. for Record); Pl.’s Brief in Support of Resp. to Def.’s Mot. to Dismiss or, in the Alternative, Mot. for Summary Judgment (“Pl.’s Opp’n”) at 13-14, ECF No. 22-1. On October 23, 2014, an official “Notice” was issued by the government stating that a sole-source award for the contract would be awarded to Technical Communications. Notice (Oct. 23, 2014), ECF No. 12; see Def.’s Mot. at 6-7; Pl.’s Opp’n at 14- 15; Hr’g Tr. 27:5-10 (Jan. 26, 2015). [4]
On September 18, 2014, Hyperion filed suit in this court, seeking bid preparation and proposal costs and “unreimbursed legal fees” in the amount of $402,583.22, a “[d]eclaration that the contested [s]olicitation was a sham [c]ompetition,” and “such further and other relief as the [c]ourt may deem just and proper.” Compl. ¶¶ 1, 3, 7; Compl. at 15. Hyperion avers that the result of the Army’s solicitation was “pre-ordained” because “the Army had decided before the [c]ompetition to make an [a]ward to T[echnical Communications]’s proposed [s]ubcontractor, doing so in the guise of an [a]ward to T[echnical Communications] as the prime [c]ontractor,” evidenced by the fact that the Army knew but did not disclose subsurface conditions for the fiber-optic cable installation to bidders. Compl. ¶ 14. On November 24, 2014, the government filed its motion to dismiss or, in the alternative, motion for summary judgment.
After briefing and a hearing, the court concludes that it has jurisdiction to hear Hyperion’s post-award protest of the second award to Technical Communications, but relief must be denied on the merits because the government acted properly under its foreign military *4 assistance and sales regulations and policies to make an award of the contract based upon the Kingdom of Jordan’s direction.
ANALYSIS
Although the government invokes RCFC 12(b)(1) and RCFC 12(b)(6) as a basis for dismissal of Hyperion’s protest, see Def.’s Mot. at 5-8, it does not shape its contentions around those rules. Instead, the government urges that Hyperion’s claims should be dismissed because they are “procedurally improper” on two grounds: (1) the claims were previously adjudicated in the underlying bid protest and are therefore claim precluded, and (2) they are based on an erroneous assumption that the Army engaged in a “sham competition” in which “the Army had decided before the [c]ompetition to make an [a]ward to . . . T[echnical Communications].” . at 11-13.
A. Jurisdiction
Hyperion premises this court’s jurisdiction on the Tucker Act, 28 U.S.C. § 1491, as
amended by the Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12, 110 Stat.
3870, 3874-76 (Oct. 19, 1996). By statute, this court has jurisdiction “to render judgment on an
action by an interested party objecting to a solicitation by a [f]ederal agency for bids or proposals
for a proposed contract or to a proposed award or the award of a contract or any alleged violation
of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1);
see Systems Application & Techs., Inc. v. United States
,
Hyperion requests relief based on the government’s actions in connection with a
procurement,
i.e.
, the cancellation of the Army’s solicitation and award of a sole-source contract
following the court’s judgment setting aside the government’s initial award to Technical
Communications. Compl. “Congress has defined the term ‘procurement’ to include ‘all
stages of the process of acquiring property or services, beginning with the process for
determining a need for property or services and ending with contract completion and closeout.’”
OTI Am., Inc. v. United States
,
B. Conversion of a Motion under RCFC 12(b)(6) and RCFC 56 to a Motion for
Judgment on the Administrative Record under RCFC 52.1
The government next contends that Hyperion has failed to state a claim upon which relief
may be granted. A motion under RCFC 12(b)(6) is addressed on the pleadings. If the parties
present matters beyond the pleadings, the court has discretion to take cognizance of those
materials.
See Easter v. United States
,
In this instance, the government submitted to the court as attachments to its motion materials which give context to the allegations contained in the complaint and which were generated by the procuring agency during the procurement. A 01-78. The court has taken these materials into account in framing the factual background and addressing the merits of this case. At the hearing, the parties were put on notice that the court would consider the *6 administrative materials. See, e.g ., Hr’g Tr. 11:11-20, 26:2 to 27:17. In the circumstances, the court’s consideration of these extra-pleading materials requires conversion of the government’s motion to dismiss or for summary judgment into a motion for judgment on the administrative record. Accordingly, the government’s motion to dismiss under RCFC 12(b)(6) or alternatively for summary judgment under RCFC 56 is converted into a motion for judgment on the administrative record under RCFC 52.1.
C. Claim Preclusion
On the merits, the government first argues that judgment should be issued in its favor
under the doctrine of claim preclusion. Def.’s Mot. at 11-13. Under claim preclusion, “a
judgment on the merits in a prior suit bars a second suit involving the same parties or their
privies based on the same cause of action.”
Jet, Inc. v. Sewage Aeration Sys.
,
The parties in this instance do not dispute factors (1) and (2); in both actions, the parties are identical and the court issued a final judgment on the merits with respect to Hyperion’s first bid protest. [6] The disagreement concerns factor (3). In the government’s view, Hyperion’s current claims “arise from the exact same solicitation, competition, and contract award to T[echnical Communications],” and plaintiff’s “current complaint is attempting to relitigate the same factual transactions at issue in the prior protest.” Def.’s Mot at 12. To obtain “monetary relief following a [c]ourt decision awarding equitable relief on the same underlying facts,” the government avers that Hyperion was required to “take the affirmative action” of filing a motion for relief from the prior judgment under RCFC 60(b). Id . at 7; Hr’g. Tr. 4:13-20 . [7] Because *7 Hyperion requested injunctive relief in the earlier lawsuit, the government insists that it may not now request bid preparation and proposal costs in a separate action as the matter has already been adjudicated. Def.’s Mot. at 7-8; Hr’g Tr. 5:13-15.
Hyperion contests the government’s characterization, arguing that the transactional facts are different in this action compared to the first bid protest. Pl.’s Opp’n at 10-11, 15-17. At the time the prior action was decided the government had not rescinded the solicitation and issued a sole-source award to Technical Communications. Hyperion contends that it is challenging those agency decisions in this second action, not relitigating the factual elements that were at issue in the first protest. Pl.’s Opp’n at 12.
Somewhat similar circumstances were addressed in
Insight Sys. Corp. v. United States
,
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under RCFC 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
RCFC 60(b). In the first action, Hyperion had requested declaratory relief, a permanent injunction
requiring the Army to terminate its contract with Technical Communications, and “such further
and other relief as the [c]ourt may deem just and proper.” Pl.’s Opp’n at 10-11 (quoting Compl.
in No. 13-1012C, at 22). The court in weighing the proper remedy reasoned that “T[echnical
Communications] would suffer an economic hardship if the contract award is rescinded, but if
Hyperion is only awarded bid preparation costs, it would suffer a corresponding hardship.”
Hyperion I
,
The continuing responsibility of this court over its decrees ‘is a necessary concomitant of the prospective operation of equitable relief,’ and has its roots in the power of courts to modify decrees ‘as events may shape the need.’ In the court’s view, nothing about the Clerk’s pro forma entry of a judgment under RCFC 58[] prevents this court from revisiting its decree in a bid protest case to address subsequent events. A contrary ruling might encourage an agency to play a procurement version of thimblerig—indicating that a new procurement was anticipated, only to proceed otherwise after the time for bid preparation and proposal costs has run.
Insight Sys. Corp. v. United States
,
In this instance also, subsequent events that occurred following the court’s judgment have created new transactional facts requiring reevaluation. The government itself recognizes that a “changed circumstance” existed after the Kingdom of Jordan elected to designate a particular contractor following the resolution of the initial bid protest. Hr’g Tr. 6:12-15. In short, the transactional facts of this case differ from those present in the first bid protest, and the doctrine of res judicata does not bar Hyperion’s claims.
D.
The “International Agreement” Exception to the
Competition in Contracting Act
The court accordingly turns to the ultimate question in the case: whether Hyperion may
recover bid preparation and proposal costs under the circumstances at hand. Generally, an
unsuccessful competitor “may recover the costs of preparing its unsuccessful proposal if it can
establish that the [g]overnment’s consideration of the proposals submitted was arbitrary or
capricious.”
E.W. Bliss Co. v. United States
,
The parties dispute whether the first condition has been met, i.e. , whether the Army has committed a prejudicial error in conducting its procurement. Hr’g Tr. 18:7-11. Hyperion avers that it is entitled to bid preparation and proposal costs because the “[c]ompetition *9 conducted under [the solicitation] was a sham,” Pl.’s Opp’n at 17, and the costs were incurred while “chasing a [c]ontract which it was never going to receive,” id. at 19. [9]
The government denies the existence of a “sham” and insists that any prejudicial error that occurred in connection with its initial solicitation was addressed by the court’s prior decision and judgment. Def.’s Mot. at 3. Thereafter, the government argues that the Army did not commit any prejudicial error in cancelling the solicitation following the court’s decision because the Kingdom of Jordan, rather than the Army, directed the contract award to Technical Communications. Def.’s Mot. at 14-26. The government emphasizes that because the contract involved services to be provided to a sovereign nation, the Army was bound by regulations that prevented it from overriding the decision of a sovereign nation receiving American funds. Id . at 21-22.
The Department of Defense’s Foreign Military Sales program provides a framework through which the Department of Defense contracts with industry actors to provide American supplies and services to foreign nations. Def.’s Mot. at 14. [10] A Defense Security Cooperation Agency (“DSCA”) Directive called the SAMM serves as the primary document through which the DSCA acts for the Department of Defense in carrying out its programs in compliance with the federal statutes and regulations. Id . at 15 (citing A 74-76 (Reissuance of the Security Assistance Management Manual as Defense Security Cooperation Agency Manual 5105.38-M, DSCA Policy 12-20 (Apr. 30, 2012))). The Manual, which is “mandatory for use by all the [Department of Defense] [c]omponents,” outlines the procedure that a foreign government must follow to be approved for funding. A 02. This procedure begins with an initial assessment of the foreign government’s needs and progresses to include formally sending a Letter of Request to the United States government, having the request reviewed by the appropriate United States Implementing Agency, and receiving a Letter of Offer and Acceptance from the Implementing Agency. A 08-22 (SAMM ¶¶ C2.1.1-C5.4.1). Once the Letter of Offer and Acceptance is signed and submitted to and approved by the Department of State, the Defense Finance and Accounting Office grants the Implementing Agency authority to begin allocating funds to execute the Federal Military Sales request. Def.’s Mot. at 17 (citing A 15-23 (SAMM ¶¶ C.5.1.6-C.5.4.7)). The Implementing Agency may supply the goods and services itself or negotiate a contract with the defense industry through designated U.S. procurement offices. . *10 at 17-18 (citing A 12 (SAMM ¶ C4.4.1)). [11] Changes may be made during the progression of a Foreign Military Sales case at the will of either the foreign government or the U.S. government. Id. at 18.
In general, when an Implementing Agency procures goods and services for the benefit of
a foreign nation, the purchasers must act in accordance with Department of Defense regulations,
including the prescribed competitive procurement process. Def.’s Mot. at 18;
see
A 12;
see also
10 U.S.C. § 2304(a) (requiring an agency to “obtain full and open competition through the use of
competitive procedures”). Nonetheless, the Competition in Contracting Act provides exceptions
in which foreign nations can direct sole-source awards outside of full and open competition.
See
Def.’s Mot at 18
.
One such exception is the “International Agreement” exception, 10 U.S.C.
§ 2304(c)(4), which applies when a foreign government reimburses the Implementing Agency
for the cost of acquiring the goods or services or when projects are funded with nonrepayable
Foreign Military Funds. Def.’s Mot. at 18, 20; FAR § 6.302-4; A 27 (SAMM ¶ C.6.3.4.1) (“The
exception may be applied to L[etters of Offer and Acceptance] funded with nonrepayable
F[oreign Military Funds].”)
.
Under this exception, full and open competition is not required
when “the written directions of a foreign government reimbursing the agency for the cost of the
procurement of the property or services for such government, have the effect of requiring the use
of procedures other than competitive procedures.” 10 U.S.C. § 2304(c)(4);
see also
FAR
§ 6.302-4; DFARS § 206.302-4. Section 6.302-4 of the FAR, which “essentially mirrors the
language from 10 U.S.C. § 2304(c)(4) concerning when ‘other than competitive procedures’ may
be used,”
L-3 Commc’ns Corp. v. United States
,
In this instance, the project to be completed on behalf of the Kingdom of Jordan was funded with nonrepayable Foreign Military Funds, Hr’g Tr. 9:20 to 10:19, 12:2-3, and therefore the “International Agreement” exception applies. A sovereign nation, the Kingdom of Jordan has discretion and autonomy to direct sole-source awards without the full and open competition required under the federal government’s procurement system. See Def.’s Mot . at 10; Hr’g Tr. 34:9-17. While the SAMM notes that “[r]equests for other than full and open competition . . . should be to meet the objective requirements of the purchaser and [cannot be conducted] for improper or unethical considerations,” A029 (SAMM ¶ C6.3.4.3), in general, the Department of Defense contracting agencies “are encouraged to defer to a foreign purchaser’s requests . . . to the extent that they are not aware of any indication that such requests violate U.S. law or ethical business practices.” Def.’s Mot. at 21-22.
In cancelling the solicitation, the Army adhered to the provisions outlined in the SAMM. The Kingdom of Jordan’s sole source request was proper under the “International Agreement” exception of the Competition in Contracting Act and it appears that all of the requisite steps were taken by both Jordan and the Army to ensure compliance. Notably, Hyperion has not contended that the Kingdom of Jordan’s designation of Technical Communications as a sole-source awardee violated any of the SAMM requirements and has raised no other objection to the Kingdom of Jordan’s actions. Although the court invalidated the contract between the Army and Technical Communications in the original bid protest, the invalidation was based on the Army’s prejudicial error in assessing offers under the solicitation, and nothing in the materials presented suggests that Technical Communications would be incapable of completing the contract; indeed, Technical Communications previously completed the third iteration of the five-part project successfully. See A 47 (the Kingdom of Jordan’s Letter of Request). Moreover, Hyperion has always been aware that the requested services were to benefit a sovereign nation. As the article(s) and/or service(s) from a specific organization or entity, or that competition be limited to specific organizations or entities. . . . F[oreign ]M[ilitary ]S[ales] customers need not provide a rationale for the request.
SAMM ¶ C.6.3.4. The government’s counsel acknowledged that he did not know the exact source of the
funds. Hr’g Tr. 11:21 to 12:1. Nonetheless, the parties appear to agree that the funds provided
by the United States are essentially the Kingdom of Jordan’s and within that nation’s control.
Hr’g Tr. 12:8-10.
*12
government correctly observes, “[i]n submitting a bid and participating in this procurement,
Hyperion accepted the risk that Jordan could decide to conduct a sole-source procurement at any
time during the solicitation phase and irrespective of any injunctive relief awarded to Hyperion
in a bid protest.” Def.’s Mot at 9-10;
see also
Hr’g Tr. 5:16-21. Generally, “[p]roposal
preparation expenses are a cost of doing business that are normally ‘lost’ when the effort to
obtain the contract does not bear fruit.”
E.W. Bliss Co.
,
In sum, the Army’s approval of the Kingdom of Jordan’s selection of Technical Communications as the sole-source awardee of the contract did not constitute a prejudicial error and was not unlawful.
CONCLUSION
The government’s motion to dismiss under RCFC 12(b)(1) for lack of subject matter jurisdiction is DENIED. The government’s motion to dismiss under RCFC 12(b)(6), or alternatively for summary judgment under RCFC 56, is converted into one for judgment on the administrative record under RCFC 52.1 and that motion is GRANTED. The clerk shall enter judgment in accord with this disposition.
No costs.
It is so ORDERED .
s/ Charles F. Lettow Charles F. Lettow Judge
Notes
[1] Although the government has considered that this case is susceptible to disposition on
either a motion to dismiss under RCFC 12(b)(6) or a motion for summary judgment under RCFC
56, it nonetheless is a post-award bid protest subject to RCFC 52.1. Thus, review on the
administrative record of the procurement is appropriate in this court. RCFC 52.1 Rules
Committee note (2006 adoption) (“Summary judgment standards are not pertinent to judicial
review upon an administrative record. . . . This rule[,
i.e.
, RCFC 52.1,] applies whether the
court’s decision is derived in whole or in part from the agency action reflected in the
administrative record.”).
The court’s findings are based on the administrative record.
See Bannum, Inc. v. United
States
,
[2] After the first decision became final, on June 17, 2014, Hyperion filed an application for
attorneys’ fees and expenses and under the Equal Access to Justice Act, 28 U.S.C. § 2412. On
September 29, 2014, the court awarded Hyperion attorneys’ fees of $30,309.19, paralegal fees of
$987.00, and expenses of $441.26.
Hyperion, Inc. v. United States
,
[3] The attachments to the government’s motion are sequentially paginated and are denoted as “A __”.
[4] Further citations to the transcript of the hearing held on January 26, 2015 will omit reference to the date.
[5] The attached materials include the Security Assistance Management Manual (“SAMM”), A 01-38; Letter of Offer and Acceptance, A 39-46; the Kingdom of Jordan’s Letter of Request, A 47; Memorandum in Lieu of Justification and Approval, A 48-49; Department of Defense Federal Acquisition Regulation Supplement (“DFARS”) excerpts, A 50-53; Army Contracting Command Desk Book excerpts from Aug. 1, 2014, A054-055; Federal Acquisition Regulation excerpts, A 56-59; Department of Defense Directive 5105.65 (Oct. 26, 2012), A 60- 73; Reissuance of the Security Assistance Management Manual as Defense Security Cooperation Agency Manual 5105.38-M, DSCA Policy 12-20 (Apr. 30, 2012), A 74-76; and Joint Travel Regulations, 48 C.F.R. § 31.205-46, A 77-78.
[6] In its sur-reply, Hyperion suggests that the court’s judgment was not wholly “final.”
Pl.’s Sur-Reply to Def.’s Reply to Pl.’s Resp. to Def.’s Mot to Dismiss, or, in the Alternative,
Mot. for Summary Judgment at 6-7, ECF No. 26-1. It nonetheless agrees that it
was
final in
some respects;
i.e.
, regarding “[the] part of this [c]ivil [a]ction . . . setting aside the [c]ontract
awarded to T[echnical Communications],” which involved the same solicitation and contract. .
Additionally, and notably, the judgment had to be “final” for Hyperion to seek and
obtain an award of fees and expenses under the Equal Access to Justice Act.
See Hyperion II
,
[7] RCFC 60(b) provides, in pertinent part: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
[9] Hyperion suggests that the government’s Independent Government Cost Estimate demonstrates that the government “knew the subsurface conditions which would be encountered” by the contractors, Pl.’s Opp’n at 18, yet did not provide that information in the form of “detailed site maps [or] location information for trenching, installation, and testing of long-haul and last-mile fiber-optic communications networks within [Jordan]” with the solicitation, insisting instead that each offeror bear the risk of such conditions, id. at 6. Hyperion contends that the government’s failure to disclose subsurface conditions substantially increased Hyperion’s bid preparation and proposal costs. Hr’g Tr. 24:7-16. Because Technical Communications and its proposed subcontractor had an “inside track” with Jordan, it was better able to bear that risk. Pl.’s Opp’n at 18.
[10] “‘Security Assistance’ is a group of programs that allows the transfer of U.S. military articles and services to friendly governments or international organizations.” Def.’s Mot. at 16.
[11] SAMM ¶ C.4.4.1 states, in relevant part “Defense articles or services may be sold from [Department of Defense] stocks, or the [Department of Defense] may enter into contracts to procure defense articles or services on behalf of eligible foreign countries or international organizations. [Department of Defense] procurements for F[oreign ]M[ilitary ]S[ales] use standard Federal Acquisition Regulation (FAR) contract clauses and contract administration practices except where deviations . . . are authorized.” A 12.
[12] L-3 Communications was decided before changes were adopted in 2012 to the procedures outlined in the SAMM. See Hr’g Tr. 9:10-18; A 03-06 (Revised Guidance for Requests for Other than Full and Open Competition, DSCA Policy 12-15); A 74-76 (Reissuance of the SAMM, DSCA Policy 12-20 (April 30, 2012)). Even so, the decision in L-3 Communications remains helpful in construing the relevant statutory, FAR, and DFARS provisions.
[13] The SAMM provides, in pertinent part: One of [the Competition in Contracting Act]’s exceptions to full and open competition at 10 U.S.C. section 2304(c)(4) is implemented as the “International Agreement” exception in FAR 6.302-4 and [DFARS] 206.302-4. An authorized official of the purchasing government may submit a written request . . . that the Implementing Agency with procurement responsibility . . . procure a defense