This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DYNCORP INTERNATIONAL, LLC,
Plaintiff-Appellant
v.
UNITED STATES, AAR AIRLIFT GROUP, INC.,
Defendants-Appellees
______________________
2018-1209
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-01704-RHH, Senior Judge Robert
H. Hodges, Jr.
______________________
SEALED OPINION ISSUED: November 28, 2018
PUBLIC OPINION ISSUED: December 10, 2018 *
______________________
AARON MARTIN PANNER, Kellogg, Huber, Hansen,
Todd, Evans & Figel, PLLC, Washington, DC, argued for
plaintiff-appellant. Also represented by DAVID MICHAEL
NADLER, Blank Rome LLP, Washington, DC.
* This opinion was originally filed under seal and
has been unsealed in full.
2 DYNCORP INTERNATIONAL, LLC v. UNITED STATES
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee
United States. Also represented by ROBERT EDWARD
KIRSCHMAN, JR., DOUGLAS K. MICKLE, JOSEPH H. HUNT;
KATHLEEN D. MARTIN, Office of the Legal Adviser, United
States Department of State, Washington, DC.
JONATHAN F. COHN, Sidley Austin LLP, Washington,
DC, argued for defendant-appellee AAR Airlift Group, Inc.
Also represented by JOEL SINGER, ROBERT JOSEPH
CONLAN, JR., KATHERINE L. OLSON.
______________________
Before CHEN, MAYER, and BRYSON, Circuit Judges.
PER CURIAM.
DynCorp International, LLC (“DynCorp”) appeals a
judgment of the United States Court of Federal Claims
denying its post-award bid protest. See DynCorp Int’l,
LLC v. United States,
134 Fed. Cl. 537 (2017) (“Court of
Federal Claims Decision”). We affirm.
BACKGROUND
DynCorp was the incumbent contractor on a previous
contract to provide worldwide aviation support services
(“WASS”) to the United States Department of State,
Bureau for International Narcotics and Law Enforcement
Affairs, Office of Aviation (“State”). WASS activities are
part of State’s Air Wing, a program which “provides
aviation support for the eradication and interdiction of
illicit drugs.” J.A. 100079. The program also provides
aviation support for reconnaissance, medical evacuation,
and the movement and security of personnel and equip-
ment.
Id.
In July 2014, State issued a solicitation which called
for the award, on a best value basis, of an indefinite
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 3
delivery and indefinite quantity contract to provide flight
operations services, aviation logistics services, and avia-
tion maintenance and engineering services for the WASS
program. J.A. 100079–87. In January 2015, the agency
evaluated the initial proposals submitted by DynCorp and
AAR Airlift Group, Inc. (“AAR”) and made a competitive
range determination that excluded DynCorp. See J.A.
125500. Following two protests filed by DynCorp, howev-
er, State took corrective action and revised the competi-
tive range to include DynCorp. J.A. 125500–01.
After two rounds of discussions, State evaluated the
offerors’ final proposals. It empaneled a four-member
technical evaluation team, which rated DynCorp’s pro-
posal as “unacceptable” for Factor One (Management and
Administration), primarily because DynCorp received a
deficiency associated with its proposal that the Infor-
mation Technology Associate Contractor (“IT Associate
Contractor”), a separate contractor operating under a
separate contract, would maintain the new Management
Information System (“MIS”). See J.A. 106075, 106079–81,
106667, 110358. On September 1, 2016, the Source
Selection Authority (“SSA”) awarded the WASS contract
to AAR. J.A. 110463; see also J.A. 110454–63. The SSA
determined that “AAR submitted a [s]uperior technical
proposal that met or exceeded all of the technical re-
quirements” of the solicitation. J.A. 110460.
Following the contract award, DynCorp filed a protest
with the United States Government Accountability Office
(“GAO”), arguing that the WASS contract solicitation “did
not impose post-transition [MIS] operational and mainte-
nance responsibilities on the [WASS] Contractor.” J.A.
124062. Instead, according to DynCorp, while the solici-
tation required the WASS Contractor to test and imple-
ment the MIS, it assigned the IT Associate Contractor
“primary responsibility” for maintaining and operating
the MIS following the transition from the legacy Air Wing
4 DYNCORP INTERNATIONAL, LLC v. UNITED STATES
Information System (“AWIS”). J.A. 124062; see also J.A.
125499.
The GAO denied DynCorp’s protest, concluding that
State’s evaluation of the proposals submitted by DynCorp
and AAR was “reasonable, consistent with the solicitation,
and did not reflect unequal treatment.” J.A. 125658.
DynCorp then appealed to the Court of Federal Claims,
asserting that State’s evaluation of its technical proposal
was arbitrary and capricious and that State erred in
failing to disqualify AAR for soliciting and using DynCorp
proprietary information. The Court of Federal Claims
rejected these arguments, however, concluding that
“[g]iven the judicial standards to be applied in reviewing
decisions of a contracting officer, the agency award deci-
sion was entirely reasonable and rational.” Court of
Federal Claims
Decision, 134 Fed. Cl. at 541. In the
court’s view, the contracting officer had a reasonable basis
for concluding that “DynCorp’s proposal was deficient
compared to that of AAR,”
id. at 544, because “DynCorp’s
revised proposal did not address Federal [Information
Technology] requirements and did not address important
data migration and capture issues,”
id. at 543. The court
concluded, moreover, that State’s “decision not to disqual-
ify AAR ha[d] a rational basis in the entire record.”
Id.
DynCorp then appealed to this court. We have juris-
diction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
A. Standard of Review
We review the Court of Federal Claims’ grant of
judgment on the administrative record without deference.
Allied Tech. Grp., Inc. v. United States,
649 F.3d 1320,
1326 (Fed. Cir. 2011); see also Colonial Press Int’l, Inc. v.
United States,
788 F.3d 1350, 1355 (Fed. Cir. 2015). “In a
bid protest case, the inquiry is whether the agency’s
action was arbitrary, capricious, an abuse of discretion, or
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 5
otherwise not in accordance with law and, if so, whether
the error is prejudicial.” Glenn Def. Marine (ASIA), PTE
Ltd. v. United States,
720 F.3d 901, 907 (Fed. Cir. 2013);
see 28 U.S.C. § 1491(b)(4).
B. DynCorp’s Arguments
DynCorp advances three principal arguments on ap-
peal. First, it contends that State acted arbitrarily and
capriciously in refusing to disqualify AAR from the pro-
curement for obtaining and using proprietary DynCorp
information. Second, DynCorp argues that State misled it
into believing that it could permissibly transfer responsi-
bility for MIS operations and maintenance to the IT
Associate Contractor. Finally, it asserts that State erred
when it declined to disqualify AAR for failing to include a
required staffing plan in its proposal. We address each of
these arguments in turn.
C. The Responsibility Determination
Contracting officers are vested with authority to exer-
cise discretion on a wide range of procurement issues,
including determinations regarding whether a particular
offeror is a responsible offeror. 1 Impresa Construzioni
Geom. Domenico Garufi v. United States,
238 F.3d 1324,
1334–35 (Fed. Cir. 2001); see also PAI Corp. v. United
States,
614 F.3d 1347, 1352 (Fed. Cir. 2010) (“To demon-
strate that [a contracting officer’s] determination is arbi-
trary or capricious, a protester must identify ‘hard facts’;
a mere inference or suspicion of an actual or apparent
conflict is not enough.”). Here, after undertaking an
exceptionally thorough review of the record, the contract-
ing officer reasonably decided not to disqualify AAR based
1 The Federal Acquisition Regulation dictates that
“[n]o purchase or award shall be made unless the con-
tracting officer makes an affirmative determination of
responsibility.” 48 C.F.R. § 9.103(b).
6 DYNCORP INTERNATIONAL, LLC v. UNITED STATES
upon its receipt of allegedly proprietary DynCorp infor-
mation. See J.A. 126080–103. The contracting officer
conducted a document-by-document review of all thirty
documents in AAR’s possession that contained DynCorp
information. J.A. 126081–86. He concluded that twenty
of these documents were publically available. J.A.
126081–82. As to the remaining ten documents, the
contracting officer determined that they did not contain
DynCorp bid or proposal information, J.A. 126083–91,
and that AAR did not use any information in those docu-
ments “to gain a competitive advantage” in the procure-
ment, J.A. 126092.
DynCorp points to the fact that Anita Hamilton, an
AAR employee who had formerly worked at DynCorp,
provided AAR with certain DynCorp salary information
when AAR was developing its initial bid on the WASS
contract. See J.A. 126105–06, 126527, 126789–90,
127130–58. Sworn evidence in the record showed, howev-
er, that: (1) Hamilton did not consider the DynCorp salary
information to be confidential, J.A. 126117; (2) she made
only “limited use” of the salary information, J.A. 126117;
see also J.A. 126091; and (3) the salary information was
“from 2010 or earlier,” J.A. 126116; see also J.A. 126090–
91. Further sworn evidence showed that AAR did not ask
Hamilton to provide the salary information and that she
provided it “on her own initiative during her [temporary]
assignment with AAR.” J.A. 126117. The contracting
officer reasonably concluded, moreover, that AAR did not
use the limited salary information provided by Hamilton
when it prepared its final proposal, see J.A. 126083–84,
126105–06, 126117, 127284, and that AAR obtained no
“[c]ompetitive [a]dvantage” as a result of its receipt. J.A.
126084; see also J.A. 126091 (noting that “AAR took steps
to sanitize [the Hamilton salary] information from future
proposal submissions”); J.A. 126101 (concluding that
“there [was] simply no evidence that AAR received any
type of competitive advantage from any information it
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 7
received concerning [DynCorp’s] performance under its
incumbent contract”). Under such circumstances, the
contracting officer had a rational basis for his decision not
to disqualify AAR based upon its receipt of the stale
DynCorp salary information referenced by Hamilton. 2
See J.A. 126083–99.
Likewise unpersuasive is DynCorp’s argument that
State was required to disqualify AAR because it received
a spreadsheet containing DynCorp profit margin analysis
(“PMA”) information from a DynCorp subcontractor. See
J.A. 126112–14. With respect to the PMA information,
AAR promptly informed the contracting officer that a
DynCorp subcontractor had sent one of AAR’s independ-
ent consultants an unsolicited email with an attachment
containing DynCorp PMA information. See J.A. 110464.
Given that there was no credible evidence that AAR
solicited the PMA spreadsheet, see J.A. 110504–07,
126112–14, used any of the information it contained, see
J.A. 110504–07, 126112–14, or gained any competitive
advantage as a result of its receipt, J.A. 126086–91, the
contracting officer acted well within the scope of his
2 Although Hamilton attempted to obtain certain
incumbent contract information from a DynCorp subcon-
tractor in May 2014, sworn record evidence showed that
the subcontractor never provided that information. J.A.
126119–20. As the contracting officer reasonably deter-
mined, AAR gained “[n]o competitive advantage” and
DynCorp suffered “[n]o harm” as a result of Hamilton’s
unfulfilled inquiry to the DynCorp subcontractor. J.A.
126084. Significantly, moreover, the contracting officer
determined that any information obtained from the
DynCorp subcontractor would have been immaterial
given that “missions [using the DynCorp subcontractor]
were eliminated from the [s]olicitation with the issuance
of [amendment 5].” J.A. 126091.
8 DYNCORP INTERNATIONAL, LLC v. UNITED STATES
discretion in declining to disqualify AAR based upon the
PMA information. See, e.g., Advanced Data Concepts, Inc.
v. United States,
216 F.3d 1054, 1058 (Fed. Cir. 2000)
(explaining that “[t]he arbitrary and capricious standard
. . . is highly deferential” and “requires a reviewing court
to sustain an agency action evincing rational reasoning
and consideration of relevant factors”); John C. Grimberg
Co. v. United States,
185 F.3d 1297, 1303 (Fed. Cir. 1999)
(“Because responsibility decisions are largely a matter of
judgment, contracting officers are generally given wide
discretion to make this decision.”).
On appeal, DynCorp argues that the contracting of-
ficer was unduly concerned about whether there had been
a violation of the Procurement Integrity Act (“PIA”), 41
U.S.C. § 2102, and failed to assess adequately whether
AAR should be disqualified for having created an “ap-
pearance of impropriety.” See NKF Eng’g, Inc. v. United
States,
805 F.2d 372, 377 (Fed. Cir. 1986) (concluding that
a contracting officer had discretion to disqualify an offeror
when he “perceive[d] a strong appearance of impropriety
in a situation not precisely covered by the [Ethics in
Government Act, 18 U.S.C. § 208(a)]”). We disagree. The
contracting officer here properly addressed not only
whether AAR violated the PIA, but also specifically con-
sidered whether any “appearance of impropriety” tainted
the procurement. See J.A. 126091 (rejecting DynCorp’s
allegation that AAR engaged in “‘corporate espionage’”
and concluding that AAR’s receipt of the Hamilton salary
information was not “a compromise to the integrity of the
acquisition . . . or otherwise demonstrative of poor busi-
ness ethics”); J.A. 126092 (examining “whether AAR’s
obtaining and relying upon information relative to [Dyn-
Corp’s] incumbent contract . . . gave rise to an appearance
of an impropriety or otherwise indicated that AAR was
not a responsible contractor”); J.A. 126095 (“It is clear to
me that AAR did not violate the [PIA] nor commit any
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 9
misconduct as it relates to the Solicitation.” (emphasis
added)).
D. DynCorp’s Technical Proposal
DynCorp argues that State led it to believe that it was
permissible to shift responsibility for MIS operations and
maintenance to the IT Associate Contractor after transi-
tion from the AWIS. We do not find this argument per-
suasive. The solicitation stated that the new MIS would
“be proposed by the [WASS Contractor]” and specified
that the WASS Contractor would “input and maintain the
preponderance of [MIS] data.” J.A. 100087. While it is
true that the solicitation originally contained a sentence
stating that “[t]he IT [A]ssociate [C]ontractor will assume
responsibility for the MIS after transition,” J.A. 100276,
State, in October 2015, issued solicitation amendment
five, which deleted this sentence and replaced it with a
sentence stating that “[t]he IT [A]ssociate [C]ontractor
will support the existing MIS (AWIS) until transition to
[the] new MIS is complete,” J.A. 103418 (emphasis omit-
ted).
Importantly, moreover, during an August 2014 ques-
tion and answer session State specifically stated that the
WASS Contractor was required to shoulder responsibility
for the MIS after transition from the AWIS. See J.A.
103342 (explaining that “[o]nce the MIS is successfully
tested and implemented, operation and maintenance will
remain with the [WASS Contractor]”). State also in-
structed offerors to include costs for MIS operations and
maintenance on a particular line of the performance work
statement. See J.A. 103399 (explaining that offerors
should “assign” costs for MIS operations and maintenance
“to [performance work statement] line # 2.C.43.b”); see
also J.A. 103966 (emphasizing that “[t]he requirements of
[performance work statement] sections 2.C.43.b through
2.C.43.e are . . . the contractor’s responsibility”). Given
State’s explicit directive that the WASS Contractor bore
10 DYNCORP INTERNATIONAL, LLC v. UNITED STATES
responsibility for MIS operations and maintenance after
transition from the AWIS, see J.A. 103342, we reject
DynCorp’s allegation that the agency misled it into believ-
ing that it was acceptable to transfer that responsibility
to the IT Associate Contractor.
DynCorp argues that four technical evaluation notices
(“TENs”) which State issued to it during the second round
of discussions, see J.A. 111557, 111585, 111934, 111936,
caused it “reasonably to believe that the IT [Associate]
Contractor could handle [operations and maintenance] for
the MIS.” To the contrary, however, these TENs asked
DynCorp to clarify whether or not its proposal included
certain MIS equipment and lifecycle support tasks. TEN
137, for example, referred to the radio-frequency identifi-
cation (“RFID”) devices that DynCorp included in the
“Distribution Management Technologies” section of its
proposal. J.A. 111557; see also 105738–39. State noted
that the RFID devices were not included “as part of a total
MIS solution in the MIS section” of DynCorp’s proposal
and that DynCorp had not indicated whether it had
“included the cost of these requisite system[s] (i.e. tags,
readers, and software), installation and configuration
labor, and lifecycle replacement costs in the contract.”
J.A. 111557. State then asked DynCorp to clarify wheth-
er the RFID devices were included in its MIS proposal or
whether it expected State to purchase the devices. J.A.
111557. Although the TENs cited by DynCorp requested
clarification regarding whether DynCorp’s proposal
included certain MIS-related costs and equipment, they
are insufficient to overcome State’s explicit instruction
that the WASS Contractor, not the IT Associate Contrac-
tor, would be responsible for maintaining and operating
the MIS after transition from the AWIS, see J.A. 103342.
Indeed, TEN 130 specifically admonished that “[n]ew MIS
activities and any required IT component should be
included in the Offeror’s proposal.” J.A. 112476.
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 11
E. Alleged Unequal Treatment
DynCorp contends that State should have disqualified
AAR because AAR, like DynCorp, proposed that the IT
Associate Contractor would be responsible for MIS opera-
tions and maintenance following transition from the
AWIS. This argument fails. AAR’s technical proposal
included “Maintenance and Operations” as one of the
“nine major stages” in its MIS solution. J.A. 109390. Its
proposal also stated that it would “[o]perate and maintain
the [MIS], report defects, make minor enhancements to
the system, and conduct periodic reviews.” J.A. 109391.
DynCorp’s technical proposal, by contrast, specifically
stated that the IT Associate Contractor would be respon-
sible for MIS maintenance and operations. J.A. 106075;
see also J.A. 106079–81.
In arguing that AAR proposed to shift responsibility
for MIS maintenance and operations to the IT Associate
Contractor, DynCorp places great weight on a statement
from AAR’s technical proposal stating that “[a]s requested
by the [contracting officer’s representative], we will deliv-
er responsibility for the enterprise [MIS] to the IT Associ-
ate Contractor, or other designated personnel.” J.A.
108866–67; see also J.A. 109388–89. 3 According to Dyn-
Corp, the only reasonable reading of this statement is
that AAR proposed to transfer responsibility for the MIS
to the IT Associate Contractor after the transition from
the AWIS was complete.
3 DynCorp also points to four TENs that State is-
sued to AAR during the first round of discussions in
October 2015. See J.A. 112624, 112628, 112632, 112640.
These TENs, however, simply quote language from the
original performance work statement, language which
was deleted by solicitation amendment five. See J.A.
103418.
12 DYNCORP INTERNATIONAL, LLC v. UNITED STATES
We do not agree that AAR’s statement can reasonably
be interpreted in only one way. Given that AAR’s pro-
posal specifically stated that “Maintenance and Opera-
tions” was one of the “major stages” in its MIS solution,
J.A. 109390, State rationally interpreted AAR’s statement
as simply giving the agency the option to direct AAR to
shift responsibility for MIS maintenance and operations
to the IT Associate Contractor or another designated
party. As the GAO correctly concluded, “DynCorp’s
proposal unambiguously places responsibility for MIS
maintenance on the IT [A]ssociate [C]ontractor upon
completion of the implementation of the new MIS. In
contrast, the agency reasonably interpreted AAR’s pro-
posal as assuming responsibility for MIS maintenance, as
well as acknowledging that the offeror would transfer
such responsibility if requested by the agency.” J.A.
125669–70.
F. AAR’s Staffing Plan
Finally, we conclude that, under the particular cir-
cumstances presented here, State did not err when it
considered AAR’s response to TEN 010, see J.A. 112759–
66, when evaluating its staffing proposal. Although the
solicitation contained a prohibition on cross-referencing
other proposal volumes, see J.A. 100197, it did not prohib-
it offerors from cross-referencing a discussion response.
See J.A. 100233 (“If it is determined to be in the best
interest of the Government to hold discussions, offeror
responses to Evaluation Notices (ENs) and the Final
Proposal Revision (FPR) will be considered in making the
source selection decision.”).
CONCLUSION
We have considered DynCorp’s remaining arguments
but do not find them persuasive. Accordingly, the judg-
ment of the United States Court of Federal Claims is
affirmed.
DYNCORP INTERNATIONAL, LLC v. UNITED STATES 13
AFFIRMED
