Beechcraft Defense Company, Llc v. United States ( 2013 )

  •            In the United States Court of Federal Claims
                                            BID PROTEST
                                              No. 13-202C
                                   (Filed Under Seal: April 25, 2013)
                               (Reissued for Publication: May 10, 2013)*
                                         TO BE PUBLISHED
    BEECHCRAFT DEFENSE                         )
    COMPANY, LLC,                              )
                  Plaintiff,                   )
                                                              Post-Award Bid Protest; Override of
    v.                                         )              the CICA Automatic Stay; 31 U.S.C.
                                                              § 3553(d); Acquisition of Light Air
    THE UNITED STATES,                         )
                                                              Support Aircraft for the Afghan Air
                  Defendant,                   )              Force.
           and                                 )
    SIERRA NEVADA CORPORATION,                 )
                  Defendant-Intervenor.        )
            James J. McCullough, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington,
    D.C., for plaintiff. Jerald S. Howe, Joseph J. LoBue, Michael J. Anstett, Aaron T. Tucker,
    Fried, Frank, Harris, Shriver & Jacobson LLP, Deneen J. Melander, Robbins, Russell,
    Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C., of counsel.
           J. Hunter Bennett, Trial Attorney, Kirk Manhardt, Assistant Director, Jeanne E.
    Davidson, Director, Commercial Litigation Branch, Stuart F. Delery, Acting Assistant
    Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for
           Todd Miller, Holland & Hart LLP, Colorado Springs, Co., for defendant-intervenor.
      This Opinion and Order was originally filed under seal on April 25, 2013 (docket entry 43)
    pursuant to the protective order entered on March 22, 2013 (docket entry 22). The parties
    were given an opportunity to advise the Court of their views with respect to what
    information, if any, should be redacted under the terms of the protective order. The parties
    filed a joint status report on May 9, 2013 (docket entry 45). The Court has reviewed the
    parties’ proposed redactions and concluded that, with certain exceptions, they are
    appropriate. Accordingly, the Court is reissuing its Opinion and Order dated April 25, 2013
    with redactions indicated by three consecutive asterisks within brackets ([***]).
                                      OPINION AND ORDER
            On February 27, 2013, plaintiff Beechcraft Defense Company, LLC (“Beechcraft”)
    filed a bid protest with the Government Accountability Office (“GAO”), in which plaintiff
    asserts that the Department of the Air Force (the “Air Force”) improperly awarded a contract
    for certain aircraft to Sierra Nevada Corporation (“SNC”). Pursuant to the Competition in
    Contracting Act (“CICA”), 31 U.S.C. § 3553(d)(3), the Air Force instructed SNC to stay
    performance while Beechcraft’s GAO protest is litigated. The Air Force then decided to
    override the automatic stay and instructed SNC to resume performance. On March 20, 2013,
    plaintiff filed a bid protest complaint (docket entry 1) challenging the Air Force’s override
    decision as arbitrary, capricious, and an abuse of discretion.
    I.     Facts
           A.      The Initial Solicitation
            The procurement at issue in this case is for the acquisition of light air support
    (“LAS”) aircraft to be provided to the Afghan Air Force (“AAF”). Compl. ¶ 11. As part of
    its 2014 withdrawal from Afghanistan, the United States has committed to provide LAS
    aircraft and associated training for the AAF. The LAS aircraft will be used both for training
    and air-to-ground attack support. AR Tab 5, at 1298. Aerial security enhances ground troop
    freedom of movement and provides additional reconnaissance and extended attack reach. Id.
    at 1299. The Combined Security Transition Command – Afghanistan originally planned for
    delivery of LAS aircraft by September 2011. Id. The United States is now committed to
    provide Afghanistan with LAS aircraft beginning in the summer of 2014. Id.
            The Air Force issued its initial solicitation, No. FA8637-10-R-6000 (the “Initial
    Solicitation”), on October 29, 2010. Sierra Nevada Corp. v. United States, 
    107 Fed. Cl. 735
    739 (2012). At that time, delivery was to begin in April 2013. AR Tab 5, at 1299. The Air
    Force received proposals in response to the Initial Solicitation from two offerors, Beechcraft
    (which was known at that time as “Hawker Beechcraft Defense Company, LLC” and has
    since changed its name) and SNC. Sierra Nevada Corp., 107 Fed. Cl. at 739. On
    November 1, 2011, the contracting officer issued a decision excluding Beechcraft from the
    competitive range. Id.
           Beechcraft filed a bid protest with the GAO, No. B-406170, on November 21, 2011,
    challenging the Air Force’s decision to exclude Beechcraft from the competitive range. Id.
    On December 22, 2011, the GAO dismissed Beechcraft’s protest on timeliness grounds. Id.
    The same day, the Air Force awarded contract number FA8637-12-D-6001 (the “Initial
    Contract”) to SNC. Id.; see also Def.’s Mot. to Dismiss at 2, Hawker Beechcraft Def. Co. v.
    United States, No. 11-897C (Fed. Cl. Mar. 13, 2012).
           On December 27, 2011, Beechcraft filed a bid protest action in this court, Case
    No. 11-897C. 107 Fed. Cl. at 739. On January 4, 2012, the Air Force voluntarily issued a
    stop-work order to SNC on the Initial Contract. Id. at 740. Then, on February 28, 2012, the
    United States filed a notice of intent to take corrective action including setting aside the
    award of the Initial Contract to SNC, reinstating Beechcraft to the competitive range, and
    accepting new proposals. Id. at 742. On March 2, 2012, the Air Force notified SNC that it
    was terminating the Initial Contract. Id. The court dismissed Case No. 11-897C on May 7,
    2012. Id.
             B.     Corrective Action and the Amended Solicitation
             On April 17, 2012, the Air Force met with Beechcraft and SNC to discuss a draft
    amendment to the Initial Solicitation to request new proposals. Id. at 745. The Air Force
    then issued an amendment to the Initial Solicitation on May 4, 2012. Id. at 746. The
    amended solicitation requires delivery of two aircraft every month beginning July 31, 2014
    and continuing through April 2015. AR Tab 1, at 762. On June 12, 2012, SNC filed a bid
    protest action in this court challenging the Air Force’s corrective action and seeking, in
    effect, to reinstate the Initial Contract. 107 Fed. Cl. at 748. Judge Christine Miller ultimately
    found that the corrective action was not unreasonable, allowing source selection to proceed
    on the amended solicitation. Id. at 760–61.
            On February 27, 2013, the Air Force once again awarded the contract (the “LAS
    Contract”) to SNC. AR Tab 2, at 1072. Plaintiff filed a bid protest with the GAO on
    March 8, 2013. AR Tab 2.1 Pursuant to 31 U.S.C. § 3553(d)(3)(A) and FAR 33.104(c)(1),
    the Air Force directed SNC to stop work on the LAS Contract on March 11, 2013. AR
    Tab 3. Then, on March 15, 2013, the Air Force notified the GAO and the parties of its
    decision to override the stay of performance and cancel the stop-work order. AR Tab 12.
            The Air Force prepared a Determination and Findings (“D&F”) memorandum dated
    March 15, 2013 in support of its override decision. See generally AR Tab 5. The D&F
    states that the override is “in the best interests of the United States” and that “unusual2 and
    compelling circumstances that significantly affect the national security interests of the United
    States and its coalition partners will not permit waiting for a GAO decision.” Id. at 1304.
    The D&F explains that the Air Force cannot wait for the GAO’s resolution of Beechcraft’s
    protest because [***].
           The D&F describes the LAS aircraft as “indispensable to the operational and strategic
    success of the [Afghan National Security Forces (“ANSF”)].” Id. at 1299. Air-to-ground
    support protects the lives of Afghan ground forces and decreases the risk of poor morale and
    increased desertion rates. Id. Thus, the LAS aircraft is a “key enabler for the ability of the
    ANSF to maintain security” without the assistance of U.S. troops in Afghanistan. Id.
        Plaintiff filed a supplemental protest with the GAO on March 14, 2013. AR Tab 4.
     The D&F uses the phrase “unusual and compelling circumstances” instead of “urgent and
    compelling circumstances.” Defendant suggests that the language may have originated from
    10 U.S.C. § 2304(c)(2), which permits sole source procurements upon a showing of “unusual
    and compelling circumstances.” Def.’s Mot. 20 n.2. Whatever the source of the language, it
    does not appear to affect the substance of the analysis in the D&F.
            According to the D&F, the LAS aircraft are already “severely late to need.” Id.
    Under the Initial Contract, delivery was scheduled to begin in April 2013. Id. The D&F
    states that the lengthy history of this procurement, including prior litigation and the Air
    Force’s corrective action, has extended the procurement schedule “to its stretching point.”
    Id. at 1302. The D&F concludes that the costs of delaying performance—[***]—exceed the
    monetary costs that would result if the GAO were to sustain the protest and the Air Force
    terminated the contract. Id. at 1301.
            Plaintiff filed this protest on March 20, 2013. Plaintiff also filed a motion for
    emergency declaratory relief, a temporary restraining order, and/or a preliminary injunction
    (docket entry 7, Mar. 20, 2013). After an initial telephonic status conference with the Court
    on March 21, 2013, defendant produced the D&F to plaintiff. On March 27, 2013, defendant
    produced the administrative record (“AR”). Plaintiff filed its motion for judgment on the AR
    (“Pl.’s Mot.”) on April 3, 2013 (docket entry 32). Defendant filed its cross-motion (“Def.’s
    Mot.”) on April 10, 2013 (docket entry 37), as did defendant-intervenor (docket entry 40).
            Plaintiff also filed a motion to supplement the AR (docket entry 31, Apr. 3, 2013)
    with the declaration of Beechcraft’s LAS Program Manager, Chris Knaak (“Knaak Decl.”).
    Defendant responded (docket entry 36, Apr. 10, 2013) that, “rather than opposing
    supplementation,” it would provide two declarations from Brigadier General Steven Shepro
    (“Shepro Decl.”) and Colonel James G. Fulton (“Fulton Decl.”). During oral argument
    defendant moved to supplement the AR with the declarations of General Shepro and Colonel
    Fulton. Defendant-intervenor filed an opposition (docket entry 38, Apr. 10, 2013) to
    plaintiff’s motion to supplement the AR and also moved to supplement the AR (docket entry
    39, Apr. 10, 2013) with a declaration from Silvanus Taco Gilbert, Vice President of
    Integrated Tactical Solutions at SNC (“Gilbert Decl.”). On April 16, 2013, plaintiff filed a
    reply brief (docket entry 42) in support of its motion to supplement the AR and in opposition
    to defendant-intervenor’s motion to supplement the AR.
             The Court heard oral argument on pending motions on April 19, 2013 and announced
    its rulings from the bench. This Opinion explains the Court’s reasoning.
    II.    Analysis
            The court has jurisdiction over this bid protest action—including the authority to
    grant declaratory or injunctive relief—under the Tucker Act, as amended by the
    Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874
    (1996). 28 U.S.C. § 1491(b) (granting the Court of Federal Claims 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 any alleged
    violation of a statute or regulation in connection with a procurement or a proposed
    procurement”); see also RAMCOR Servs. Group, Inc. v. United States, 
    185 F.3d 1286
    , 1291
    (Fed. Cir. 1999) (determining that the Court of Federal Claims may review the merits of an
    override independent of any consideration of the merits of the underlying contract award).
            “[T]he task of the reviewing court is to apply the appropriate APA standard of review
    to the agency decision based on the record the agency presents to the reviewing court.”
    Axiom Res. Mgmt., Inc. v. United States, 
    564 F.3d 1374
    , 1379 (Fed. Cir. 2009) (emphasis in
    original) (quoting Fla. Power & Light Co. v. Lorion, 
    470 U.S. 726
    , 743–44 (1985)). The
    Federal Circuit has therefore held that the administrative record should only be supplemented
    in “cases in which ‘the omission of extra-record evidence precludes effective judicial
    review.’” Id. (quoting Murakami v. United States, 
    46 Fed. Cl. 731
    , 735 (2000), aff’d, 
    398 F.3d 1342
     (Fed. Cir. 2005)).
            “[A] Motion for Judgment on the Administrative Record, pursuant to [Rule] 52.1 [of
    the Rules of the Court of Federal Claims (“RCFC”)], is similar but not identical to a Motion
    for Summary Judgment, pursuant to RCFC 56.” Info. Scis. Corp. v. United States, 73 Fed.
    Cl. 70, 97–98 (2006) (citing Bannum, Inc. v. United States, 
    404 F.3d 1346
    , 1355 (Fed. Cir.
    2005)). Summary judgment is appropriate where there are no genuine issues of material fact
    and the moving party is entitled to judgment as a matter of law. See RCFC 56(c); Anderson
    v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247 (1986). When considering a motion for judgment
    on the administrative record, however, the court must weigh the evidence before it; RCFC
    52.1 is “designed to provide for a trial on a paper record, allowing fact-finding by the trial
    court.” Bannum, 404 F.3d at 1356.
            In bid protest cases, the court only sets aside the agency’s decision if it was
    “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
    Supreme Foodservice GMBH v. United States, No. 13-1, slip op. at 10 (Fed. Cl. Mar. 4,
    2013); see 28 U.S.C. § 1491(b)(4); 5 U.S.C. § 706. An agency’s decision is arbitrary and
    capricious if it (1) relied on factors which Congress did not intend it to consider, (2) entirely
    failed to consider an important aspect of the problem, (3) offered an explanation for its
    decision that runs counter to the evidence before the agency, or (4) was so implausible that it
    could not be ascribed to a difference in view or the product of agency expertise. Motor
    Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 43 (1983).
            CICA provides for an automatic stay of contract performance while a bid protest is
    pending before the GAO. 31 U.S.C. § 3553(d)(3). CICA also authorizes an agency to
    override the automatic stay and proceed with contract performance upon a written finding
    that either “performance of the contract is in the best interests of the United States” or
    “urgent and compelling circumstances that significantly affect interests of the United States
    will not permit waiting for the decision of the Comptroller General concerning the protest.”
    31 U.S.C. § 3553(d)(3)(C).
            When reviewing agency decisions to override a CICA stay of performance, courts
    consider: (1) “whether significant adverse consequences will necessarily occur if the stay is
    not overridden”; (2) “whether reasonable alternatives to the override exist that would
    adequately address the circumstances presented”; (3) “how the potential cost of proceeding
    with the override, including the costs associated with the potential that the GAO might
    sustain the protest, compare to the benefits associated with the approach being considered for
    addressing the agency’s needs”; and (4) “the impact of the override on competition and
    integrity of the procurement system.” Reilly’s Wholesale Produce v. United States, 73 Fed.
    Cl. 705, 711 (2006); see also Supreme Foodservice, slip op. at 14–16; e-Management
    Consultants, Inc. v. United States, 
    84 Fed. Cl. 1
    , 4 (2008); Superior Helicopter LLC v. United
    78 Fed. Cl. 181
    , 189 (2007); cf. PMTech, Inc. v. United States, 
    95 Fed. Cl. 330
    , 345
    (2010) (cautioning against “over-zealously appl[ying] the Reilly’s Wholesale factors to a
    CICA stay override decision, [as] such a review could exceed the narrow, highly deferential,
    ‘no rational basis’ standard of review,” and noting that “[t]he court’s focus should be on
    whether the CICA stay override decision was rational and whether the agency considered
    relevant factors, not on whether the agency conformed its analysis to [the specific factors set
    forth in Reilly’s Wholesale].”).
           A.      Significant Adverse Consequences
            The D&F justifies the Air Force’s override decision by describing several adverse
    consequences that it asserts will occur if the stay is not overridden, including [***].
    Additionally, further delay resulting from waiting for the GAO’s decision would require a
    continued U.S. presence to provide air-to-ground capability, which “could easily mean the
    loss of military and civilian lives.” Id. at 1300–01.
            Plaintiff argues that these consequences need not occur due to alternatives to the
    override that would allow the Air Force to avoid the consequences cited in the D&F. Pl.’s
    Mot. 32. As discussed below in section II.B, however, the Air Force reasonably rejected
    plaintiff’s suggested alternatives to the override.
            Plaintiff also argues that, because the United States will continue to have some role in
    Afghanistan beyond 2014, there is no need for the AAF to have full air-to-ground capability.
    Id. at 32–33. Plaintiff cites statements from President Obama’s State of the Union Address
    that the United States will continue to train and equip Afghan forces “[b]eyond 2014.” Id.
    at 32 (citing AR Tab 14, at 1356). Plaintiff also quotes a Department of Defense report
    stating that the AAF’s “long-term development strategy” is to equip itself to “support the
    basic needs” of the Afghanistan Government “by 2017.” Id. at 32 (citing Pl.’s Mot. Ex. 13).
    Plaintiff contends that these statements demonstrate that the consequences the Air Force
    describes in the D&F “seem overstated.” Id. at 33. Plaintiff appears to argue that the AAF
    will inevitably have other capability gaps after 2014, whether or not the AAF has air-to-
    ground capability, and therefore its need for air-to-ground capability is not as significant as
    the Air Force contends.
            The Air Force’s analysis of potential adverse consequences was not arbitrary or
    capricious. Other ongoing gaps in the capabilities of the AAF do not show that adverse
    consequences will not result from the lack of air-to-ground capability. In a matter of this
    nature, the Court defers to the expertise and judgment of the Air Force’s analysis of military
    capabilities. Winter v. Natural Res. Def. Council, Inc., 
    555 U.S. 7
    , 24 (2008) (“We ‘give
    great deference to the professional judgment of military authorities concerning the relative
    importance of a particular military interest.’” (quoting Goldman v. Weinberger, 
    475 U.S. 503
    , 507 (1986))).
           B.      Reasonable Alternatives
            The D&F concludes that a continued U.S. presence in Afghanistan is the only
    alternative source of the required aircraft and associated systems for Afghanistan. AR Tab 5,
    at 1300–01. According to the D&F, a continued U.S. presence “is not feasible in light of
    [***].” Id. at 1301. Plaintiff argues, however, that the Air Force failed to consider the
    possibility that the delivery schedule could be condensed as well as improperly rejected the
    use of Mi-35 or Mi-17 helicopters. Pl.’s Mot. 11–21.
                   1.      Condensed Schedule
            Plaintiff challenges the D&F’s statement that “[a]ny delay in contract performance is
    likely to result in no less than a day-for-day delay in delivery of aircraft.” AR Tab 5, at 1299.
    Plaintiff asserts that the Air Force failed to consider several steps it could take to expedite
    delivery. First, plaintiff argues that the LAS Contract provides the Air Force with two
    periods of time related to [***] that the Air Force can complete in significantly less time.
    Pl.’s Mot. 13. [***]. According to Beechcraft’s LAS Program Manager, the [***] can be
    completed in [***] days. Knaak Decl. ¶ 12.3 Thus, plaintiff characterizes the additional
    [***] days as a “built-in cushion.” Pl.’s Mot. 13. [***].
            Next, plaintiff argues that SNC can perform the contract more rapidly than the current
    delivery schedule. Id. at 16. Plaintiff claims that, if it had been awarded the contract, it
    could have accelerated its production schedule. Id. at 17. Additionally, plaintiff notes that
    SNC’s subcontractor, Embraer, has previously produced and delivered aircraft on schedules
    shorter than the eighteen months provided in the Solicitation and the LAS Contract. Id.
    at 17–18 (citing Pl.’s Mot. Exs. 4–11). Finally, plaintiff cites to SNC’s public statements that
    it was “exploring ways to mitigate delays” in response to the stop-work order it received in
    January 2012. Id. (citing Pl.’s Mot. Ex. 12).
            The court’s review is limited to examining whether the agency’s decision is supported
    by a rational basis. PMTech, 95 Fed. Cl. at 341. The court defers to the agency as to its
    reasonable assessments concerning scheduling risks. See Tech Sys., Inc. v. United States, 
    98 Fed. Cl. 228
    , 258 (2011). Where the agency has considered and reasonably rejected an
    alternative, the court will not analyze whether the agency considered every available avenue
    a plaintiff can imagine for achieving that alternative. Accordingly, the Air Force need not
      Plaintiff moved to supplement the AR with Mr. Knaak’s declaration. Defendant does not
    oppose plaintiff’s motion, but defendant-intervenor does. Mr. Knaak’s declaration does not
    seek to re-examine the agency’s fact finding or inferences, but rather seeks to add evidence
    regarding other allegedly reasonable alternatives. See Totolo/King v. United States, 87 Fed.
    Cl. 680, 693 n.7 (2009) (allowing supplementation of the AR after noting that “[a] discrete
    difference exists between adding evidence to the record to aid in the reexamination of the
    contracting officer’s decision and submitting an evidentiary filing that points out to the court
    whether the contracting officer did or did not do something,” because if plaintiff “can
    substantiate that the contracting officer’s review was insufficient or deficient, [plaintiff]
    would be supplying the required factual predicate for a finding that the contracting officer
    acted arbitrarily or capriciously”). Here, Mr. Knaak’s declaration is necessary for effective
    judicial review of the reasonableness of alternatives the agency did not pursue or consider.
    Plaintiff’s motion to supplement the AR with Mr. Knaak’s declaration is therefore
    show that it found each of plaintiff’s proposals to be impossible, but only that it rationally
    considered whether a condensed schedule was possible.
            The Air Force’s rationale for rejecting efforts to compress the schedule is eminently
    reasonable. The D&F explains that delivery is already overdue. AR Tab 5, at 1299 (“The
    award date of 27 February 2013 means that delivery to Afghanistan has already been
    delayed, with the first two aircraft now scheduled 15 months later than the initial date of
    April 2013 . . . .”); id. (“This requirement is already severely late to need.”). Thus, the Air
    Force is already operating under a compressed schedule. Id. at 1299 (“The time required for
    the contractor to build, certify, test, ferry, and deliver aircraft is already short.”).
    Accordingly, the D&F concludes based on schedule constraints that any delay in
    performance will likely result in delayed delivery. Id. (“Any delay in contract performance is
    likely to result in no less than a day-for-day delay in delivery of aircraft.”); id. at 1299–30
    (“Due to short contract schedule and disruption associated with delays, if the Air Force stays
    contract performance, by even as little as 30 days, the contractor’s need to stop subcontractor
    performance and deliveries will delay delivery of aircraft and training at least 30 days and
    possibly longer.”). [***]. The D&F shows that the Air Force clearly did not, as plaintiff
    asserts, “entirely fail to consider” a compressed schedule.
            Moreover, the Air Force is only required to consider reasonable alternatives to the
    override. The Knaak declaration fails to establish that any of plaintiff’s proffered methods
    for condensing the schedule are in fact reasonable. In general, Mr. Knaak’s declaration
    consists of conclusory statements that the schedule can be compressed [***]. See Knaak
    Decl. ¶¶ 7 (stating that Beechcraft could remove [***] time), 12 (“The [***] is arbitrary,
    unnecessary, and can be reduced significantly.”). Not surprisingly, Colonel Fulton4 disagrees
    with Mr. Knaak’s assertions. Fulton Decl. ¶¶ 9–17, 20–24. Most of the time plaintiff
    proposes removing from the schedule is attributable to [***]. Id. ¶ 24. There appears to be
    no reason why Mr. Knaak’s understanding of the time needed for [***] would be at all
    superior to Colonel Fulton’s knowledge. Furthermore, as Colonel Fulton explains,
    “performance is not just a function of aircraft delivery.” Id. ¶ 4. Therefore, proposals to
    condense one portion of the schedule do not necessarily have any effect on the overall time
    for performance.
            Additionally, the D&F explains that this is an exceptional case because it is not only
    the actual delays, but also [***].
     Defendant submitted a declaration of Colonel James G. Fulton in which Colonel Fulton
    explains why the delivery schedule could not be condensed and responds to the claims of Mr.
    Knaak. Defendant did not originally move to supplement the AR with Colonel Fulton’s
    declaration, but made such a motion during oral argument. Colonel Fulton’s declaration
    explains why the Air Force did not pursue or consider the alternatives plaintiff and Mr.
    Knaak propose. Accordingly, like Mr. Knaak’s declaration, Colonel Fulton’s declaration is
    necessary for effective judicial review. Defendant’s motion to supplement the AR with
    Colonel Fulton’s declaration is therefore GRANTED.
                   2.      Mi-35 or Mi-17 Helicopters
          The D&F analyzes the viability of using the six Mi-35 helicopters currently in use by
    the AAF as an alternative to the LAS aircraft:
           [***]. This is not a viable option. [***]. Based on existing military and
           political considerations at the national strategic level, provision of LAS
           aircraft through this contract is the only way, consistent with our
           commitments, that the U.S. is able to provide to Afghanistan the light attack
           and surveillance capability it so desperately requires.
    AR Tab 5, at 1301. Plaintiff argues that the record contradicts the Air Force’s conclusion
    that the AAF could not use Mi-35 helicopters as an air-to-ground alternative to LAS aircraft.
    Pl.’s Mot. 19–21. Plaintiff notes that five of the AAF’s six Mi-35s will remain in service
    until at least late 2015. Id. at 20. Plaintiff claims that this would be enough time to account
    for any delay in performance of the LAS Contract. Id.
            The primary flaw in plaintiff’s argument is its assumption that six helicopters are a
    reasonable alternative to twenty planes. Plaintiff incorrectly attributes to the D&F the
    conclusion “that the Mi-35s can adequately perform the mission.” See id. The Air Force’s
    reference to the Mi-35 helicopters in the D&F does not imply that the helicopters could
    effectively replace the LAS aircraft. See AR Tab 5, at 1300–01. Rather, the D&F addresses
    whether the Mi-35s ([***]) could be kept in service and rejects this as “not a viable option.”
    Id. ([***]). [***]. In context, it appears that the purpose of the discussion of the Mi-35s in
    the D&F is to show that without the LAS aircraft, [***]. Accordingly, the Air Force
    reasonably concluded that use of the Mi-35 helicopters instead of the LAS aircraft is not a
    reasonable alternative to the override.
            Plaintiff also argues that the D&F ignores the option of converting Mi-17s into attack
    helicopters. Pl.’s Mot. 20. Brigadier General Steven Shepro5—the Commanding General,
    NATO Air Training Command Afghanistan and Commander, 438th Expeditionary Wing,
    Kabul, Afghanistan—explains that the Mi-17s are an even less viable alternative to the LAS
    aircraft. First, Mi-17s do not have forward firing capability. Shepro Decl. ¶ 11. Second,
    General Shepro explains that even when the Mi-17s are outfitted with forward firing
    capability, they fail to satisfy the AAF’s air-to-ground support needs. Id. ¶¶ 12–13. The Mi-
    17 helicopters are therefore not a reasonable alternative to the LAS aircraft.
           C.      Costs Versus Benefits of the Override
          The D&F demonstrates that the Air Force properly considered the potential costs as
    compared with the benefits of proceeding with the override. Paragraph six of the D&F
     Defendant moved during oral argument to supplement the AR with the declaration of
    Brigadier General Steven Shepro which explains the deficiencies of the Mi-35 and Mi-17
    helicopters. General Shepro’s declaration is necessary for judicial review of the reasons the
    Air Force did not consider the Mi-17s to be a reasonable alternative. Defendant’s motion to
    supplement the AR with General Shepro’s declaration is therefore GRANTED.
    calculates the estimated costs of termination if the GAO sustains the protest and the contract
    is terminated one hundred days after award. AR Tab 5, at 1301 ([***]). Paragraph seven
    explains that the potential costs of not proceeding with the override include [***]. Weighing
    the costs of not proceeding with the override, the D&F concludes that “[t]he ‘cost’ of delay is
    more than a calculation of dollars and cents. In this case, further delay with resulting
    capability gaps could easily mean the loss of military and civilian lives.” Id. Plaintiff does
    not challenge the Air Force’s comparison of termination costs to the costs of not proceeding
    with the override.
           D.      Integrity of the Procurement System
            In the D&F, the Air Force acknowledges the importance of the CICA stay in
    protecting the integrity of the procurement system, but the D&F states that this is “an
    extraordinary case.” AR Tab 5, at 1302. The Air Force concludes that, due to the already-
    tight schedule and the significant effects of this procurement on national security interests,
    the facts of this case justify the unusual measure of overriding the CICA stay. Id. Plaintiff
    disagrees and argues that the Air Force (1) failed to account for the flaws in the history of the
    procurement, (2) improperly considered the merits of plaintiff’s GAO protest, and (3) used
    the override as a litigation tactic in support of the Air Force’s position before the GAO. Pl.’s
    Mot. 22.
            Plaintiff asserts that the Air Force was required to consider the flawed history of this
    procurement. Pl.’s Mot. 23. As plaintiff notes, an Air Force Commander Directed
    Investigation previously found that the Initial Contract procurement was plagued by “issues
    with documentation of the procurement, inconsistencies in evaluation of the offerors’
    proposals, and bias exhibited in favor of SNC.” 107 Fed. Cl. at 743. Plaintiff cites the Air
    Force’s failure to notify plaintiff of its decisions to exclude plaintiff from consideration and
    to award the Initial Contract to SNC and the Air Force’s alleged failure to include all relevant
    material in the administrative record during plaintiff’s first protest action in this court. Pl.’s
    Mot. 23–24. While selection and award of the Initial Contract was flawed, the Air Force
    investigated the initial procurement and responded to the flaws with corrective action,
    including a new solicitation and source selection conducted by an entirely new source
    selection evaluation team, contracting officer, source selection advisory council, and source
    selection authority. AR Tab 5, at 1297. Plaintiff provides no support for its conclusion that
    the Air Force was required to consider problems with a past iteration of this procurement
    when considering whether to override the stay.
            Plaintiff also argues that the Air Force, in deciding to override the CICA stay,
    improperly considered its chances of prevailing in the GAO protest. Pl.’s Mot. 25 (citing e-
    Management, 84 Fed. Cl. at 9). The Air Force’s “preliminary assessment” was that the
    “protest grounds have not revealed inadequacies in the source selection process that would
    give reason to believe that the award decision was not adequately supported.” AR Tab 5,
    at 1303. Such de minimis reference to the merits of the underlying protest is not fatal in this
    case, unlike the more significant consideration of the merits involved in e-Management. In
    that case, the agency “articulated its optimistic view of the likely outcome of the protest to
    discount the costs of the override.” 84 Fed. Cl. at 9. Here, the D&F considered that the costs
    of the override are purely financial, but the costs of delay include strained international
    relations and possible loss of life—a comparison made on the assumption that the GAO
    would sustain the protest and the Air Force would terminate the contract with SNC. AR
    Tab 5, at 1303 (“That risk is accepted primarily because of the paramount non-monetary
    national security interests outlined in the above findings, but it is also recognized that failure
    to provide this capability to Afghanistan as promised will result in non-monetary costs that
    substantially outweigh projected termination liability.”).
             Finally, plaintiff argues that the Air Force used its override decision as a litigation
    tactic to defend against plaintiff’s GAO protest. Pl.’s Mot. 27–31. The only evidence
    plaintiff cites to support this argument is a single slide taken from an Air Force briefing
    presentation entitled “LAS Protest and Override.” AR Tab 17, at 1369. The slide lists “pros
    and cons” of the override. Id. Plaintiff objects to two bullet points found in the “pro”
    column. Id. However, neither of these “pros,” nor any other indication that the Air Force
    was using the override as a litigation tactic, appears in the D&F. Instead, the D&F sets forth
    a thorough and reasonable explanation for the override decision.
            The Air Force properly considered the relevant factors and reasonably determined
    that the override was supported by urgent and compelling circumstances and was in the best
    interests of the United States. Accordingly, plaintiff’s motion for judgment on the
    administrative record (docket entry 32) is DENIED, defendant’s motion for judgment on the
    administrative record (docket entry 37) is GRANTED, and defendant-intervenor’s motion
    for judgment on the administrative record (docket entry 40) is GRANTED. Plaintiff’s
    motion to supplement the AR with Mr. Knaak’s declaration (docket entry 31) is GRANTED.
    Defendant’s oral motion to supplement the AR with the declarations of Colonel Fulton and
    Brigadier General Shepro is GRANTED. Defendant-intervenor moved to supplement the
    AR with a declaration from Silvanus Taco Gilbert, Vice President of Integrated Tactical
    Solutions at SNC (docket entry 39). The Gilbert declaration is not necessary for effective
    judicial review. See Axiom, 564 F.3d at 1380. Defendant-intervenor’s motion to supplement
    the AR with Mr. Gilbert’s declaration is accordingly DENIED. Plaintiff’s motion for
    emergency declaratory or injunctive relief (docket entry 7) is also DENIED.
           The Clerk shall enter judgment in favor of defendant and defendant-intervenor.
             Some information contained herein may be considered protected information subject
    to the protective order (docket entry 22, Mar. 22, 2013) entered in this action. This Opinion
    and Order shall therefore be filed under seal. The parties shall review the Opinion and Order
    to determine whether, in their view, any information should be redacted prior to publication
    in accordance with the terms of the protective order. The Court ORDERS the parties to file
    a joint status report by Thursday, May 9, 2013, identifying the information, if any, they
    contend should be redacted, together with an explanation of the basis for each proposed
           IT IS SO ORDERED.
                                                   s/ George W. Miller
                                                   GEORGE W. MILLER