Ssi Technology, Inc. v. United States ( 2020 )

In the United States Court of Federal Claims
No. 19-1947
(Filed: 12 May 2020 *)
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SSI TECHNOLOGY, INC., *
*
Plaintiff, *
* Pre-award bid protest; FAR 6.302-2;
v. * unusual and compelling urgency;
* 10 U.S.C. § 2304(c)(2); sole source
THE UNITED STATES, * procurement.
*
Defendant, *
*
and *
*
FISCHER PANDA GENERATORS, *
*
Defendant-Intervenor. *
*
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Bret S. Wacker, of Clark Hill PLC, of Detroit, MI, for plaintiff.
Delisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E.
Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, all of Washington, DC,
for defendant.
Frank V. Reilly, of Fort Lauderdale, FL, for defendant-intervenor.
OPINION AND ORDER
HOLTE, Judge.
In this pre-award bid protest, plaintiff, SSI Technology, Inc. (“plaintiff” or “SSI”)
challenges the Army’s Solicitation No. W56HZV-19-R-0050 to award a firm fixed price sole
source contract to intervenor, Fischer Panda Generators (“Fischer Panda”), for the production of
Auxiliary Power Units (“APUs”), which power M88A1/A2 Recovery Vehicles (essentially an
*
This opinion was originally filed under seal on 6 May 2020 pursuant to the protective order in this case. The Court
provided the parties six days to review this opinion for any proprietary, confidential, or other protected information,
and submit to the Court proposed redactions, if any, before the opinion is released for publication. The parties
jointly proposed minimal redactions. The Court accepts the parties’ redactions, with redacted language replaced as
follows: [XXX].
armored tank with a crane boom). Pending before the Court are plaintiff’s and the government’s
cross-motions for judgment on the administrative record and plaintiff’s application for a
temporary restraining order and motion for a preliminary injunction. For the following reasons,
the Court: (1) DENIES plaintiff’s motion for judgment on the administrative record; (2)
GRANTS the government’s cross-motion for judgment on the administrative record; and (3)
DENIES AS MOOT plaintiff’s application for temporary restraining order and motion for
preliminary injunction.
I. Background
A. Prior Procurement History
Minowitz Manufacturing Company (“Minowitz”) was the original equipment
manufacturer (“OEM”) of the APUs at issue in this case, and “was the only previous supplier for
APU spares requirements.” 1 Admin. R. at 836, ECF Nos. 20, 38 (“AR”) (unredacted 2019
contract award justification and approval, hereinafter “the 2019 J&A”). 2 “Minowitz was a viable
business entity at the time of award for contract SPRDL1-16-C-0004, . . . the last spares contract
that APUs were delivered against,” but it later went out of business. Id. “With Minowitz no
longer a source,” the “Defense Logistics Agency – Warren (DLA),” the contracting authority for
the APUs at the time, “issued a new competitive [firm fixed price (“FFP”)] solicitation for APUs
that was awarded to Essex Electro Engineer, Inc. (Essex) on 01 August 2017.” 3 Id. at 836–37.
Essex’s contract was a “3 year Indefinite-Delivery Indefinite-Quantity (IDIQ) [contract]
. . . with a minimum quantity of 9 each and a maximum quantity of 150 each.” Id. at 837. Since
Essex had not previously produced APUs, it was required to complete “First Article Testing
(FAT) which was due on 10 August 2018.” 4 Id. Essex requested DLA to extend the FAT
deadline “to 29 March 2019, with the assurance from the contractor that deliveries would remain
on schedule if FAT was approved by the end of April 2019.” Id. An Army Statement of
Urgency Worksheet, dated 7 November 2018, states, “[w]hen Essex was awarded the 3 year
[long term contract (“LTC”)], [Program Executive Office Ground Combat Systems (“PEO
GCS”)] Quality Assurance expressed concerns of Essex[’s] historical delinquencies on
government contracts and legality actions against the government.” AR at 559. Additionally, in
October 2018, personnel in the Defense Contract Management Agency (“DCMA”) Chicago
office informed the Army “Essex is accustomed to poking holes in [Technical Data Package
1
Plaintiff held contracts to supply APUs to the government in 2005 and 2007. AR at 90 (BidLink Report). The
record similarly indicates as part of those contracts, plaintiff passed First Article Test approval in 2006. AR at 87–
89 (plaintiff’s Defense Contract Management Agency First Article Test approval dated 1 November 2006). The
APUs Minowitz manufactured were different from those plaintiff previously manufactured: “there have been nine
revisions to the main APU drawing in the Technical Data Package since 2009.” Def.’s Cross-Mot. for J. on the
Admin. R. & Resp. in Opp’n to Pl.’s Mot. for J. on the Admin. R. at 16, ECF No. 32.
2
The government effectively filed the administrative record in two parts: the bulk of the administrative record
(pages 1–835) was filed 24 January 2020 at ECF No. 20, while the remainder (pages 836–41) filed 23 April 2020 at
ECF No. 38 (the unredacted 2019 J&A) at the Court’s request, discussed in greater detail infra. The Court hereafter
cites to the administrative record as if it was filed as a single, comprehensive document comprising pages 1–841.
3
Plaintiff competed for this contract, but it was ultimately awarded to Essex. AR at 281 (8 August 2019 letter from
plaintiff’s counsel to the Contracting Officer).
4
Federal Acquisition Regulation 9.302 provides, “[f]irst article testing and approval . . . ensures that the contractor
can furnish a product that conforms to all contract requirements for acceptance.”
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(“TDP”)] and pushing dates out on their contracts and this is what is happening to this current
contract with Essex.” Id. (7 November 2018 Statement of Urgency Worksheet).
During this 2017–18 timeframe, after Minowitz went out of business, “BAE Systems
looked for interest from companies in the current supply system, ultimately selecting Fischer
Panda Generators, Inc.” Id. at 418 (Fischer Panda FAT Report dated 25 January 2018). BAE
Systems therefore performed first article testing of Fischer Panda’s APU to ensure it met the
government’s APU specifications. Id. The testing took place from 10 August 2017 to 31 August
2017. Id. On 25 January 2018, BAE Systems issued Fischer Panda’s FAT approval for APU
production. 5 Id. at 415.
In February 2018, concerned that Essex would not pass FAT, “the M88 APU inventory
manager and [U.S. Army Tank Automotive Research, Development and Engineering Command
(“TARDEC”)] engineer contacted Fischer Panda to see if they could supply APUs.” AR at 536
(2018 draft J&A). Fischer Panda responded that “they could produce within 5 – 6 months after
award of contract at a rate of 15 per month.” Id.
The Contract Specialist for the APU procurement authored an undated Market Research
Report, which summarized the market research conducted to locate other potential APU
suppliers. Id. at 504. The report indicates the Army used the following sources to research
suppliers: (1) “Yahoo, Google, and GSA;” (2) “Prior Commercial Survey from [the Essex
contract];” (3) “Dynamic Small Business search;” (4) “[Federal Prison Industries]/UNICOR
search;” and (5) “Procurement History.” Id. The Market Research Report included the
following findings:
The Auxiliary Power Unit (APU) is a noncommercial item. Contract SPRDL1-17-
D-0119 was awarded to Essex Electro Engineering and Essex Electro Engineering
failed FAT. The APU is not offered from the mandatory sources of supply FAR
8.002(a)(1)(i) thru (v). Also continuous extension of the FAT completion date has
created an urgent buy for APUs.
The DLA Acquisition office sent out a full and open APU market survey in March-
April 2017 to see if a vendor can manufacture[] the APUs. Dewey Electronics
Corp., Tecmotiv, and Alturdyne Power Systems replied to the APU market survey
5
During oral argument, plaintiff’s counsel asserted “[t]he record shows that Fischer Panda got its FAT in March of
2018, yet the Government had contacted them in . . . 2018, in February.” Tr. at 16:18–21, ECF No. 42. The
government confirmed in its supplemental briefing, “[i]t is now apparent . . . that the J&A contains a scrivener’s
error because it reflects March 2018 as the date of Fischer Panda’s FAT approval.” Def.’s Resp. to Pl.’s Suppl. Br.
at 6, ECF No. 40. The government pointed out, however, that plaintiff
was aware of this error as early as October 10, 2019, because in a footnote in its protest at the GAO
it stated that ‘[t]he Agency Report repeatedly contends that the Awardee passed FAT in March 2018,
citing its TAB 17. As the document itself states, the FAT Report was issued on January 25, 2018.’
The significance of this distinction was not evident to us until April 23, 2020, during the oral
argument in this matter, when SSI raised concerns that the Army had appeared to contact Fischer
Panda before it had passed FAT . . . .
Id. (internal citation omitted) (quoting AR at 464 n.2 (plaintiff’s GAO Protest)).
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with an interest to manufacture the APUs however these vendors have never
manufacture[d] this APU. Based on this information, the Integrated Product Team
[“IPT”] contacted Panda Fisher [sic] to see if Panda Fisher [sic] could
manufacture[] the APUs.
Panda Fisher [sic] informed the IPT, Panda Fisher [sic] has manufactured the APUs
for contract W56HAV-14-C-0298 and SPRDL1-18-D-0043. Also Panda Fisher
[sic] can reduce the Production Lead Time (PLT) with a shorter Delivery Schedule
since Panda Fisher [sic] has already passed FAT.
Id. Based on these findings, as well as the increasingly urgent requirement for the APUs as more
time passed without Essex passing FAT, the Army concluded it would pursue a sole source
award to Fischer Panda. Id.
An undated 6 DLA Justification and Approval for Other than Full and Open Competition
(“2018 draft J&A”) explains the Army’s interest in Fischer Panda’s potential to supply the APUs
before Essex could pass FAT on its contract:
[Army Tank-Automotive & Armaments Command (“TACOM”)] has been actively
researching alternatives to increase available stock and determined Fischer Panda,
Inc., a new supplier of APUs, can start making deliveries of 15/month in 5 to 6
months after contract award. Fischer Panda is a qualified source who has a
production contract with BAE in support of GCS-CRS M88A2 production
program. This urgent buy will support the reduction of the Government’s backlog
while Essex works on completing FAT due in August 2018 and deliveries begin
July 2019.
There will [be] 15 months before Essex starts delivery if they pass FAT which is
due in August 2018. Essex stated in April 2018, they will not be able to deliver
earlier due to securing additional work but to the best of their ability plan to deliver
early for all three production orders at no additional cost to the government
presuming we are successful. . . .
If a contract is awarded to Fischer Panda Inc. for a quantity of 125 each it will take
5-6 months for deliveries to begin after award due to Fischer Panda is a qualified
source [sic] (FAT will not be required). This lead time is acceptable and will start
to fulfill the Army’s backorders. . . . There is no stock on hand and stock out date
was 09 August 2017.
AR at 535.
The record similarly reflects, under table of contents heading “[Procurement Request
Order Number (“PRON”) Attributes Forms,” the government’s plan to award a sole source
6
This 2018 draft J&A was signed by four different individuals within the Army on different dates spanning from 25
April 2018 to 1 May 2018. AR at 537–38. The 2018 draft J&A was never approved.
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contract to Fischer Panda during this time. One of these forms, entitled “355 Attributes,” was
created on 16 May 2018. Id. at 508. That form states:
This action is an emergency buy to be awarded to Fischer Panda. Fischer Panda is
a qualified source for this item and recently completed FAT on another contract in
[January] 2018. The STA 282 for the current action indicates a FAT requirement.
Since Fischer Panda has passed the FAT requirement on another contract for the
same item please delete the FAT requirement for this action.
Id.
The record additionally contains Army Materiel Command (“AMC”) Form 1095G, dated
3 November 2018. Id. at 520–28. That form shows the Army contemplated purchasing 125
APUs from Fischer Panda on a sole source basis. Id. at 521–22. The form also states:
The TDP was updated under DLA-Warren PRON EH8E0805EH in Mar-Apr 2018.
Old PRON EH8E0805EH will be canceled due to item moved from DLA to ACC-
Warren. [J&A] was completed under old PRON. Looking to award as soon as
possible to Fischer Panda with deliveries 6 months after award; [Required Delivery
Date (“RDD”)] June 2018.
Id. at 522.
On 7 November 2018, an individual with the TACOM, Army Working Capital Fund sent
a draft J&A for a Fischer Panda sole source award to an ACC-WRN Contracting Officer by
email attachment. AR at 518–19. Later, on 20 November 2018, the ACC-WRN Contracting
Officer assigned this procurement to another ACC-WRN official by email, stating the inventory
manager needed the sole source contract “within 2 months.” Id. at 518.
B. The Instant Procurement
Purchasing office responsibility was officially transferred from DLA to TACOM on 18
December 2018 by modification to the Essex contract. 7 AR at 583 (18 December 2018
modification of Essex contract). Once procurement authority was transferred, the Army
discussed steps to award the contract by February 2019. Id. at 561–62 (November 2018 emails
between TACOM Major Item Manager and ACC-WRN Contract Specialist, where the Contract
Specialist stated, “[w]e will do our best to get this procurement action with a target award date
(TAD) of mid Feb 2019.”). An internal email sent on 29 January 2019, however, confirms the
Army could not “pursue the urgent buy if Essex plans on completing FAT in March 2019.” 8 Id.
at 570 (29 January 2019 email from TACOM Major Item Manager to various TACOM
7
The record is not clear why the procurement was transferred from DLA to ACC. An internal email from a Combat
Maneuver & Recovery Product Support Integration Directorate Requirements Officer sent to another individual in
TACOM on 31 October 2018 states, “[Inventory Manager] originally put this procurement in for DLA to process,
but with the change in DLA policy of not working purchase requisitions for assets with a Maintenance Repair Codes
(MRC) of O, F, or Z she was instructed to cancel the PRON and re-input for ACC to procure.” AR at 687.
8
Another internal email from a TACOM Major Item Manager sent to a DLA official on 2 November 2018 indicated
ACC would not “be able to do an urgent buy when we have a [long term contract] in place with Essex.” AR at 706.
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personnel). Therefore, the Army put the “urgent buy . . . on hold until March when we will find
out if Essex has completed FAT.” Id.
After ACC-WRN issued a cure notice to Essex on 12 February 2019, Essex failed to
complete FAT by the 29 March 2019 deadline. Id. at 837 (unredacted 2019 J&A). Around that
same time, “[i]n February 2019, the M88 APU inventory manager and [Combat Capabilities
Development Command (“CCDC”)] engineer contacted Fischer Panda to see if they could
supply APUs on a new spares contract.” Id. at 838. “Fischer Panda responded that it could
produce with a nine month lead time after contract award at a rate of 15 to 20 per month.” AR at
838.
Of key interest in this bid protest suit, on 18 April 2019, the Army issued Request for
Information (“RFI”) W56HZV-19-R-0050 to FedBizOpps (“FBO”) “to find an interested vendor
that has already manufactured the Auxilliary [sic] Power Units . . . for the federal government
and has received an approved First Article Test (FAT) wavier [sic].” Id. at 210 (18 April 2019
RFI), 215 (unredacted 2019 J&A). The RFI questionnaire specifically asked whether the
respondent could produce at least 15 APUs per month following a 9-month production lead time
and whether the respondent had received an approved FAT waiver. Id. at 211. Before the RFI
closed seven days later, on 25 April 2019, two businesses responded to the RFI: Artemis
Electronics and Marvin Land Systems, Inc. Id. at 838 (unredacted 2019 J&A). Neither vendor
was able “to meet the required APU FAT and therefore, cannot be considered for award of this
urgent requirement.” Id. Neither plaintiff nor intervenor responded to the RFI. 9
Soon thereafter, on 14 May 2019, ACC-WRN terminated Essex’s contract for default due
to its failure to meet FAT. Id. at 406.
On 12 June 2019, the Competition Advocate approved the Justification & Approval for
Other than Full and Open Competition (“the 2019 J&A”) for this procurement. AR at 841
(unredacted 2019 J&A). The 2019 J&A begins by describing the supplies needed:
The APU consists of a Hatz 2G40 2-cylinder diesel engine coupled to a chain-
driven gear case that in turn drives a hydraulic pump and a 300-Amp generator.
The APU provides electrical and hydraulic power to the M88A1/A2 Recovery
Vehicles for auxiliary and emergency functions. The APU is used to charge the
vehicle batteries, power the hydraulic impact wrench, and power the refuel/defuel
pump. The M88 Recovery Vehicle provides battle field recovery operations in
support of the light and medium tactical vehicles, M1/M1A1 Abrams, and any other
current and future 70 ton class vehicles.
9
During oral argument, the Court asked counsel for plaintiff why plaintiff did not respond to the RFI. Counsel for
plaintiff responded, “I don’t know the answer to that. . . . I don’t know if they were aware of it.” Tr. at 14:14–16,
ECF No. 42. In an 8 August 2019 response to an email from the Contracting Officer sent to plaintiff’s counsel on 8
August 2019, which referenced the RFI, plaintiff’s counsel stated he read about the RFI “in the J&A but it was only
open for 7 days which makes it pretty easy to miss.” AR at 669.
Additionally, although Fischer Panda did not respond to the RFI, the record shows Fischer Panda responded to an
ACC Market Research/Commercial Item Survey, which it signed on 29 May 2019. AR at 642. Fischer Panda’s
response indicated it required 9 months for production but could supply 15 to 20 APUs per month. Id.
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Id. at 836.
The 2019 J&A cited 10 U.S.C. § 2304(c)(2), as implemented in Federal Acquisition
Regulation (“FAR”) 6.302-2(a)(2), for authority to issue the sole source procurement “because
the subject item is currently in a critical supply position.” Id. The Army explained because
Minowitz went out of business and the Essex contract was terminated for default due to Essex’s
inability to timely pass FAT, “the Army now has an urgent need for a quantity of 210 each
APUs.” 10 Id. at 836–37. The 2019 J&A further highlighted the urgency and importance of
procuring the APUs:
The continued APU out-of-stock position will result in Soldiers’ inability to
perform their mission, placing them in immediate danger. A vehicle in need an of
APU replacement is inoperable until the new APU is installed. If the backorder
and current stock is not fulfilled, Soldiers are placed in direct danger because of
deadlined vehicles, putting Soldiers’ safety at risk and causing an inability to carry
out their mission.
Id. at 837–38.
The Army explained in the 2019 J&A that “FAT is required to validate prospective
contractors have the manufacturing capability, processes, and facilities to produce the APUs [in
accordance with] the technical requirements of this procurement.” Id. at 837. Further
reinforcing the importance of FAT, the 2019 J&A emphasized “[t]he Acquisition Lead Time
(ALT) for a new contract is 10 months, and the Production Lead Time (PLT) is a minimum of 9
months without FAT and 15 months with FAT.” AR at 837. The Army thus “determined no
other type of quality assurance testing is acceptable.” Id.
The 2019 J&A identified Fischer Panda as “an existing subcontractor to British
Aerospace Engineering (BAE) in support of the Ground Combat Systems-Combat Recovery
Systems (GCS-CRS) M88A2 production program,” and “is a current supplier of APUs and is a
qualified source, receiving FAT approval in [January] 2018.” Id. Citing Fischer Panda’s ability
to “start delivery of 15 to 20 units per month within 9 months after contract award,” the Army
concluded, “[a]ward of this urgent requirement to Fischer Panda will fulfill the Army’s
backorders and continuing urgent requirements until a competitive contract can be awarded.” Id.
Under the “Market Research” heading, the 2019 J&A explained the “CCDC Engineering
and Quality Assurance Subject Matter Experts (SMEs) frequently perform research pursuant to
FAR 10.002(b)(2). The SMEs consider current market conditions on vehicles and variants,
components, and the capabilities of industry to accomplish the proposed effort when evaluating
potential vendors.” Id. at 838. Most relevant here, the market research detailed that:
10
The J&A also stated, “[c]oncurrent with this urgent action, [the Army] will solicit and award a new competitive
IDIQ contract to fulfill future non-urgent requirements.” AR at 837 (unredacted 2019 J&A). The government
confirmed “[o]n April 16, 2020, the Army issued Solicitation W56HZV-19-R-0306, the competitive procurement
for the APUs.” Def.’s Reply in Supp. of its Cross-Mot. for J. on the Admin. R. at 8, ECF No. 36.
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In February 2019, the M88 APU inventory manager and CCDC engineer contacted
Fischer Panda to see if they could supply APUs on a new spares contract. Fischer
Panda responded that it could produce with a nine month lead time after contract
award at a rate of 15 to 20 per month. Engineering determined Fischer Panda was
the only provider that could start production of the APU without FAT. Fischer
Panda can start delivery earlier compared to other vendors because Fischer Panda
has a current FAT approval. Fischer Panda has previously produced these units,
both as a subcontractor for the M88 vehicle production contract (W56HZV-14-C-
0298), and as a prime contractor for Modification Kits (SPRDL1-18-D-0043), of
which the APU is a subassembly. Based on this information and since Fischer
Panda passed FAT in [January] 2018, FAT is not a requirement for this
procurement. With the elimination of FAT, Fischer Panda production lead time is
substantially less compared to other vendors and can meet the Army’s schedule
requirement.
Id. at 838–39.
On 31 July 2019, the Army Contracting Command issued Solicitation No. W56HZV-19-
R-0050 (the “Solicitation”). AR at 19 (31 July 2019 sole source Solicitation). The Solicitation
was posted to FBO on 1 August 2019. Id. at 80 (screenshot of FBO listing for the Solicitation).
The FBO listing stated:
This solicitation is a sole source award to Panda Fisher [sic] for Auxillary [sic]
Power Units. [In accordance with] FAR 6.305 (b) the justification shall be posted
within 30 days. A previous sources sought was published and no interested parties
meet the requirements of the sources sought.
No vendors replied to sources sought with a required FAT Waiver for this
requirement.
Id. The Solicitation, however, did not require First Article Testing. The next day, on 2 August
2019, the Army published the 2019 J&A to FBO. Id. at 410 (print preview of FBO listing for the
Solicitation).
On 8 August 2019, plaintiff sent a pre-protest letter to the Contracting Officer (“CO”) “to
bring discrepancies in the . . . Solicitation to the attention of the contracting activity.” 11 Id. at
280. Specifically, the letter claimed the 2019 J&A’s assertion that no sources other than Fischer
Panda had an approved FAT was “simply wrong and does not reflect information readily
available to the CCDC.” Id. at 281. In support of this, plaintiff pointed out, “CCDC made no
attempt to contact [plaintiff] notwithstanding [plaintiff] has previously produced these APUs as a
prime contractor on at least 4 other contracts.” AR at 281. Additionally, plaintiff highlighted its
proposal in the competitive procurement which resulted in award to Essex in 2017. Id. Plaintiff
thus asserted “[t]he underlying market and procurement research underlying the J&A is fatally
11
Plaintiff expressed in a subsequent 15 August 2019 letter addressed to the contracting activity, discussed infra, its
“understanding that the undersigned’s letter of 8 August 2019 is being processed as an agency protest.” AR at 285
n.1.
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flawed and therefore does not reasonably justify the adequacy of the rationale and conclusions
set forth therein,” and expressed its intent to protest the award if the government did not
withdraw the Solicitation. Id. Plaintiff enclosed its 1 November 2006 FAT approval to its pre-
protest letter. Id. at 282–84.
After reviewing the letter and appended documentation, on 14 August 2019, the Army
held a conference call with plaintiff, during which it invited plaintiff to submit a FAT waiver
request. Id. at 285 (15 August 2019 letter from plaintiff’s counsel to the ACC-WRN Supervisory
Contract Specialist). The next day, on 15 August 2019, plaintiff submitted the waiver request to
the Supervisory Contract Specialist. 12 Id. In response to plaintiff’s counsel’s inquiry why it
needed to submit a FAT waiver despite the Solicitation’s lack of FAT requirement, the
Contracting Specialist explained, “[t]his is not a competitive procurement. The reason it’s
restricted to Fischer Panda is that FAT is not required for Fischer Panda. Any other source that
would be considered for this procurement must have FAT waived.” AR at 664–65 (12 August
2019 email chain between plaintiff’s counsel and ACC-WRN Contracting Specialist). Plaintiff
submitted the FAT waiver “with the understanding that, if the FAT Waiver is approved, the
Solicitation will be modified in a manner which would provide [plaintiff] the opportunity to
compete for a contract to meet the Government’s stated urgent requirement for the stated
quantity of the APUs.” Id. at 285–86. On the FAT Waiver Worksheet, plaintiff acknowledged
its “facility has relocated to a different physical location since completion” of Defense Contract
Management Agency (“DCMA”) Contract No. W56HZV-05-CO546, the contract for which
plaintiff received its FAT approval in 2006. Id. at 287.
On 29 August 2019, plaintiff submitted a proposal in response to the Solicitation. Id. at
294. Plaintiff offered to supply the APUs at a cost of [XXX] each, or for a total of [XXX]. Id. at
297.
On 30 August 2019, the CO sent a letter in response to plaintiff’s 8 August 2019 pre-
protest letter. Id. at 355. The CO wrote, “[i]n light of the GAO level protest filed by SSI
Technology on 29 August 2019, the Army’s response to the pre-protest letter will be included, as
necessary, in the Agency report we send to the GAO.” AR at 355.
On 4 September 2019, Army CCDC Quality Assurance and Engineering completed its
review of SSI’s FAT waiver and recommended the Army deny the waiver request. Id. at 402
(document titled “355 Attributes” and last modified 10 September 2019). The Army concluded:
While there is no formalized FAT specifically defined in the TDP for this
procurement, there are some specific Acceptance Requirements which constitute a
FAT, that need to be met prior to going into production. . . .
Due to the fact that the Contractor (SSI) has not produced this part in over 10 years,
has not completed a successful FAT on this part in the past 13 years and has had a
major change in their process, by moving their manufacturing location of this part,
12
The CO’s 27 September 2019 letter indicates plaintiff submitted the FAT waiver request on 16 August 2019. AR
at 408.
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Quality Assurance and Engineering are recommending that the FAT Waiver
Request for this PRON be denied.
Id.
On 13 September 2019, the CO posted the pre-solicitation synopsis for this procurement
on FBO. Id. at 404–05 (screenshot of FBO listing).
Finally, on 27 September 2019, the CO notified plaintiff the Army denied plaintiff’s FAT
waiver request. Id. at 408 (27 September 2019 letter from CO to plaintiff). The CO provided the
following reasons for denying plaintiff’s FAT waiver: (1) “SSI Technology has not produced
this APU in over 10 years;” (2) “SSI Technology has not passed FAT for this APU in the past 13
years;” and (3) “SSI Technology has had a major change in its processes by moving its
manufacturing facility since this APU was last produced.” Id. The CO noted, however, “[i]f the
FAT waiver request was approved, Solicitation W56HZV-19-R-0050 would have been amended
to list SSI Technology as a limited source along with Fischer Panda.” AR at 408.
C. GAO Protest History
On 29 August 2019, plaintiff filed a protest before the GAO. Id. at 1 (GAO docket).
Plaintiff argued the 2019 J&A “was factually and legally flawed” because it claimed the Army
knew plaintiff was a potential APU supplier, yet failed to contact or consider plaintiff before
deciding “to make a sole source award to Fischer Panda.” Id. at 110–11 (SSI GAO Protest).
Plaintiff similarly challenged the 2019 J&A’s professed need for FAT approval despite the
absence of FAT requirement in the Solicitation. Id. at 113. On 4 December 2019, GAO denied
the protest, and released its decision publicly on 19 December 2019. Id. at 3. GAO found “to
the extent the J&A contained factual inaccuracies—such as not stating that SSI had previously
received FAT approval of the APUs in 2006 or failing to contact SSI to ascertain its capabilities
prior to the execution of the J&A—SSI has failed to demonstrate how it has been prejudiced by
those errors.” Id. at 502. GAO similarly concluded plaintiff’s challenge to the lack of FAT
requirement in the Solicitation “provide[s] no basis to sustain the protest.” AR at 503.
D. Procedural History Before This Court
Plaintiff filed its complaint in this protest on 23 December 2019, along with its motion to
file the complaint under seal, motion for a protective order, and application for temporary
restraining order and motion for preliminary injunction. Compl., ECF No. 1; Pl.’s Mot. for
Leave to File Compl. Under Seal & Mot. for Protective Order, ECF No. 4; Appl. for TRO &
Mot. for Prelim. Inj., ECF No. 5. Pursuant to the Court’s 27 December 2019 Order, on 30
December 2019, plaintiff and the government filed a joint status report. See Joint Status Report,
ECF No. 8. In the joint status report, the government agreed to stay award of the contract
pending this protest “with the proviso that – should mission critical circumstances materialize
requiring the Army to award the contract – the Army would provide the Court, SSI, and the
Department of Justice a notice of the Army’s intent to award the contract 10 calendar days before
making an award.” Id. at 1.
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The Court held a preliminary scheduling conference on 2 January 2020. See Order, ECF
No. 7. The same day, prior to the call, Fischer Panda filed a motion to intervene, which the
Court granted to allow it to join the conference. See Mot. to Intervene on Behalf of Fischer
Panda Generators, ECF No. 9; Order, ECF No. 10. Also on 2 January 2020, the Court granted
plaintiff’s motion for leave to file its complaint under seal and motion for a protective order, but
deferred ruling on plaintiff’s motion for temporary restraining order and preliminary injunction.
Order, ECF No. 11; Protective Order, ECF No. 12.
The next day, on 3 January 2020, plaintiff filed an amended complaint to highlight that
mission critical circumstances did not presently exist, quoting the government’s proviso to the
voluntary stay in this case. See Am. Compl. ¶ 73, ECF No. 13.
On 24 January 2020, the government filed the administrative record in this matter. See
AR. On 18 February 2020, plaintiff filed its motion for judgment on the administrative record.
See Pl.’s Mot. for J. on the Admin. R., ECF No. 22 (“Pl.’s MJAR”). On 23 March 2020, the
government filed its response to plaintiff’s motion and cross-motion for judgment on the
administrative record. See Def.’s Cross-Mot. for J. on the Admin. R. & Resp. in Opp’n to Pl.’s
Mot. for J. on the Admin. R., ECF No. 32 (“Def.’s MJAR”). Plaintiff filed its response to the
government’s cross-motion and reply in support of its motion on 6 April 2020. See Pl.’s Reply
to Def.’s Opp’n to Mot. for J. on the Admin. R. & Resp. in Opp’n to Def.’s Cross-Mot. for J. on
the Admin. R., ECF No. 34 (“Pl.’s Resp. & Reply). 13 Finally, on 17 April 2020, the government
filed its reply in support of its cross-motion. See Def.’s Reply in Supp. of its Cross-Mot. for J.
on the Admin. R., ECF No. 36 (“Def.’s Reply”).
The Court held a telephonic oral argument on plaintiff’s and the government’s cross-
motions for judgment on the administrative record on 23 April 2020. See Order, ECF No. 31.
During oral argument, plaintiff’s counsel raised factual issues not addressed in its briefing—
factual issues regarding Army communications with Fischer Panda prior to February 2019 that
were detailed in the administrative record and in alleged conflict with statements made in the
2019 J&A. See Tr. at 15:2–18:20, 23:1–2, 38:2–22, ECF No. 42. The Court thus ordered
supplemental briefing on this issue, which was completed on 28 April 2020. See Order, ECF No.
37.
II. Legal Standards
A. Bid Protest Jurisdiction & APA Standard of Review
The Tucker Act provides this Court 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 the award of a contract or any alleged violation of a
statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.
13
On 6 April 2020, plaintiff originally filed its response and reply which erroneously listed the government’s
counsel in addition to plaintiff’s counsel on the cover page (ECF No. 33). On 7 April 2020, plaintiff filed an
additional response and reply with a corrected caption (ECF No. 34). On 10 April 2020, the Court struck ECF No.
33 from the record and granted plaintiff leave to file the corrected version of the response and reply, ECF No. 34.
See Order, ECF No. 35.
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§ 1491(b)(1). In rendering such judgment, this Court “review[s] the agency’s decision pursuant
to the standards set forth in section 706 of title 5.” Id. § 1491(b)(4). “Among the various
[Administrative Procedure Act] standards of review in section 706, the proper standard to be
applied in bid protest cases is provided by 5 U.S.C. §706(2)(A): a reviewing court shall set aside
the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350–51
(Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58
(Fed. Cir. 2000)). Under this standard, “a court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,
43 (1983). “The arbitrary and capricious standard applicable here is highly deferential,” and
“requires a reviewing court to sustain an agency action evincing rational reasoning and
consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).
B. Judgment on the Administrative Record in a Bid Protest
Rule 52.1(c) of the Rules of the Court of Federal Claims “provides for judgment on the
administrative record.” Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 104 (2011). Rule
52.1(c) was “designed to provide for trial on a paper record, allowing fact-finding by the trial
court.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005).
“[A] sole-source award may be set aside if either: (1) the sole-source award lacked a
rational basis; or (2) the sole-source procurement procedure involved a violation of a statute,
regulation, or procedure.” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086
(Fed. Cir. 2001). “When a party contends that the procurement procedure in a sole-source case
involved a violation of a statute, regulation, or procedure, it must establish prejudice by showing
that it would have had a substantial chance of receiving the award.” Id. “A disappointed party
can establish prejudice either by showing: (1) proceeding without the violation would have
made the procurement official’s decision to make a sole-source award rather than to conduct a
competitive bidding process irrational, and in a competitive bidding process, the complaining
party would have a substantial chance of receiving the award; or (2) proceeding without the
violation, the complaining party would have a substantial chance of receiving the sole-source
award.” Id. (internal citations omitted).
C. Permanent Injunction
When deciding whether a permanent injunction is warranted,
a court considers: (1) whether, as it must, the plaintiff has succeeded on the merits
of the case; (2) whether the plaintiff will suffer irreparable harm if the court
withholds injunctive relief; (3) whether the balance of hardships to the respective
parties favors the grant of injunctive relief; and (4) whether it is in the public interest
to grant injunctive relief.
PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004).
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III. Analysis
A. The Parties’ Arguments
Plaintiff argues the Army violated two provisions of the FAR in this sole source
procurement. First, plaintiff contends the Army violated FAR 6.302-2 “by failing to solicit
offers from as many sources as practicable” because it claims as a previous APU supplier, it was
a qualified source that the Army should have considered. Pl.’s MJAR at 16. Second, plaintiff
asserts the Army violated FAR 1.602-2(b), holding plaintiff and Fischer Panda to a different
FAT standard because the Army required plaintiff to request a FAT waiver, but did not for
Fischer Panda. Id. at 13–14. The government, on the other hand, argues it went beyond what the
FAR required to maximize competition, but Fischer Panda was the only qualified source to meet
its urgent need for APUs. Def.’s MJAR at 11–13. Additionally, the government maintains it
was reasonable for the Army to require plaintiff to submit a FAT waiver request, and it was
reasonable for the Army to deny the FAT waiver due to the amount of time since plaintiff last
passed FAT and produced APUs. Id. at 15–16.
B. Whether the 2019 J&A is Arbitrary, Capricious, or Otherwise Not in
Accordance with Law
Plaintiff argues the government violated FAR 6.302-2(c)(2) “by failing to solicit offers
from as many sources as practicable.” Pl.’s MJAR at 16. Plaintiff asserts “the Contracting
Officer improperly relied on a legally and factually deficient J&A for its decision to make a sole
source award to Fischer Panda” because it claims the J&A’s contentions that Fischer Panda “is
the only approved source for this requirement” and “[n]o other contractor has passed FAT” are
“demonstrably false.” Id. Plaintiff maintains these factual conclusions are false because plaintiff
was “a prior supplier that had passed FAT for the APUs, facts known and in the possession of
the government.” Id. at 17. Moreover, plaintiff indicates “the Government provides no
information how it confirmed or otherwise came to these conclusions.” Id. Although the
government published a Request for Information, plaintiff points out it was only open for seven
calendar days. Id. Additionally, plaintiff suggests there were several other potential suppliers
who competed for prior procurements the government could have contacted beyond intervenor,
including plaintiff. Id.
In response, the government argues “[t]he record in this case establishes that the Army
was interested in reaching out to as many vendors as possible and did more than was legally
required to do so.” Def.’s MJAR at 11. For example, “although not required by the FAR, the
contracting officer published an RFI to identify APU vendors other than Fischer Panda and
posted it for seven days.” Id. Additionally, while not required to do so, the Army published the
RFP. Id. at 11. Similarly, “although the Army was required to make ‘publicly available’ the
J&A, it was not required to do so until 30 days after contract award,” and the Army published the
J&A prior to award. Id. at 12 (emphasis omitted). Viewing these actions in the aggregate, the
government argues, “[i]n effect, the Army notified any source that could potentially qualify for a
FAT approval or waiver of the Army’s intentions before a contract award, which is exactly how
SSI became aware of this procurement.” Id. Further, contrary to plaintiff’s assertion that the
Army did not consider other sources for this procurement, “the Army analyzed possible sources
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that had an approved FAT for the Hatz APU, or would likely qualify for a waiver,” and Fischer
Panda “was the only known source.” Id. at 14. “Due to the lapse in production from any
competitive spare part APU contract, the Army concluded, no other sources were likely eligible
for FAT waiver.” Def.’s MJAR at 14. The government thus asserts plaintiff “misses the point”
by claiming “the Army did not consider sources that do not have current FAT approval or
waiver,” even though the solicitation did not require FAT because “[w]hat is required for this
procurement is that the prospective vendor have an approved FAT or a FAT waiver.” Id.
Plaintiff raised additional arguments during and after oral argument focused on four
alleged factual discrepancies between the 2019 J&A and the rest of the record. The Court
ordered supplemental briefing to address these arguments in detail. 14 First, plaintiff challenges
the urgency of this procurement because “the Government’s assertion that it diligently pursued
resolution of its urgent need, including with all known suppliers, for the APUs is inconsistent
with the 18-month gap in time between when it first claimed an urgent need and when it
published the J&A on August 2, 2019.” Pl.’s Suppl. Br. at 2. Second, plaintiff asserts that
although the 2019 J&A states the Army contacted Fischer Panda in February 2019, the record
shows the Army contacted Fischer Panda as early as February 2018, a year prior. 15 Id. at 2, 5.
Third, plaintiff claims “[t]he apparent motivation for seeking to contract only with Fischer Panda
appears to have been to create a backup or alternative supplier via sole source,” a motivation
plaintiff argues came to fruition in early 2018. Id. at 2, 6. Fourth, plaintiff complains the Army
“made no effort to make contact with SSI” even though in “June 2018, the Army specifically
identified [plaintiff] as one of only 3 prior manufacturers of the APUs.” Id. at 2.
The government responds that plaintiff’s “assertions misconstrue the documents in the
administrative record, misrepresent relevant facts, and attribute motivations to Department of
Defense staff that are speculative and contradicted by factual record evidence.” Def.’s Resp. to
Pl.’s Suppl. Br. at 2. First, the government details the urgency of procuring APUs since
Minowitz went out of business in 2017, explaining “[t]he Government was in a quandary and
explored every possibility to meet its APU needs while abiding by its contractual obligations
with Essex.” Id. at 4–5. Second, the government disputes plaintiff’s assertion that the
government contacted Fischer Panda prior to it passing FAT, indicating the 2019 J&A “contains
a scrivener’s error” as to the date of Fischer Panda’s FAT approval. Id. at 6. Third, the
government explains the Army did not make a decision to award a sole source contract to Fischer
Panda in early 2018 because: (1) “DLA was the only agency with authority to make this
decision in early 2018, not the Army;” and (2) “while DLA and TACOM personnel considered
the possibility of a sole source award to Fischer Panda in 2018, DLA ultimately decided against
it.” Id. at 6–7. Fourth, the government argues plaintiff “was not then, and is not now, a viable
solution to fulfill the Army’s urgent need for APUs” because it “submitted no evidence to the
Army, or to this Court, that it previously has manufactured the exact APU the Army currently
14
On 24 April 2020, plaintiff filed its supplemental brief addressing the alleged factual discrepancies. See Pl.’s
Suppl. Br. in Supp. of its Mot. for J. on the Admin. R., ECF No. 39. On 27 April 2020, the government filed its
response to plaintiff’s supplemental brief. See Def.’s Resp. to Pl.’s Suppl. Br., ECF No. 40. On 28 April 2020,
Fischer Panda filed its response to plaintiff’s supplemental brief. Intervenor’s Resp. to Pl.’s Suppl. Br., ECF No. 43.
15
Plaintiff also claims this contact took place before BAE issued Fischer Panda’s FAT. Pl.’s Suppl. Br. at 6. For
the same reasons discussed supra at note 5, the Army did not contact Fischer Panda prior to receiving FAT
approval; plaintiff acknowledged this fact in its GAO protest. See AR at 464 n.2 (SSI comments to Agency Report
from previous GAO protest).
- 14 -
requires and that it would be able to manufacture them and begin delivery within the required
time frame.” Id. at 7.
1. Solicitation from as Many Sources as Practicable
The Competition in Contracting Act (“CICA”) requires government agencies conducting
a procurement to “obtain full and open competition through the use of competitive procedures in
accordance with the requirements of this chapter and the Federal Acquisition Regulation.” 10
U.S.C. § 2304(a)(1)(A). The exception to this statutory requirement most relevant to this case
permits an agency to “use procedures other than competitive procedures . . . [when] the agency’s
need for the property or services is of such an unusual and compelling urgency that the United
States would be seriously injured unless the agency is permitted to limit the number of sources
from which it solicits bids or proposals.” Id. § 2304(c)(2) (also codified at 48 C.F.R. § 6.302-
2(a)(2)). The FAR limits the use of the “unusual and compelling urgency” exception in
noncompetitive procurements by requiring the agency to support the award by a written
justification and approval and to “request offers from as many potential sources as is practicable
under the circumstances.” 48 C.F.R. § 6.302-2(c).
A J&A must “contain sufficient facts and rationale to justify the use of the specific
authority cited.” Id. § 6.303-2(a). Most relevant to this case, the FAR requires a J&A to include
the following information:
(4) An identification of the statutory authority permitting other than full and open
competition.
(5) A demonstration that the proposed contractor’s unique qualifications or the
nature of the acquisition requires use of the authority cited.
(6) A description of efforts made to ensure that offers are solicited from as many
potential sources as is practicable . . . .
(8) A description of the market research conducted . . . and the results or a statement
of the reason market research was not conducted.
(9) Any other facts supporting the use of other than full and open competition, such
as:
....
(iii) When 6.302-2 is cited, data, estimated cost, or other rationale as to the extent
and nature of the harm to the Government.
Id. § 6.303-2(b).
In a factually analogous case, L-3 Communications EOTech, Inc. v. United States, the
plaintiff similarly challenged the Army’s sole source award because it claimed, among other
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things, the Army failed to maximize competition prior to the award. 85 Fed. Cl. 667, 673
(2009). The J&A in that case stated the awardee was the only qualified producer of the M68
close combat optics (“CCO”) because it was the only CCO manufacturer that had been type-
classified, a form of quality assurance, under the Army’s regulations. Id. at 674–75. The
plaintiff argued the type-classification was not as important as the sight functioning and claimed
“[b]ecause [it] received a sole source award for an alternate to the M68 CCO in 2003, . . . the
Army is precluded from ignoring [the plaintiff] as a potential source for CCOs in this sole source
procurement.” Id. at 676. The Army responded by arguing the circumstances were different in
2003 because it did not have the opportunity to procure type-classified CCOs at that time. Id.
When it made the sole-source award to the awardee in 2008, however, the awardee was ready
and able to meet the contract specifications and delivery schedule. Id. This Court found the
plaintiff’s 2003 sole source award did not prove the government failed to seek offers from as
many potential sources as practicable due to changing circumstances and the Army’s need for
type-classified CCOs. Id. Given the importance of type-classification and the Army’s urgent
delivery schedule, this Court therefore found the Army’s sole source award did not violate the
FAR. Id.
Plaintiff cites to Innovation Development Enterprises of America v. United States, 108
Fed. Cl. 711 (2013) throughout its motion for judgment on the administrative record. In that
case, the awardee was the incumbent contractor on a contract to support the Air Force Command
Man-Day Allocation System. Id. at 717. The plaintiff repeatedly expressed interest in an
upcoming procurement for the same contract, but the Air Force did not adequately prepare for
the next contract. Id. at 718. It therefore awarded a sole source contract to the incumbent
contractor because it claimed the incumbent was the only responsible source of the necessary
services, and secondarily, due to unusual and compelling urgency. Id. at 720. The government
conceded multiple violations of the FAR throughout the procurement. Id. at 719. The plaintiff
argued, among other things, the government failed to request offers from as many potential
sources as practicable under the circumstances by improperly ignoring plaintiff’s repeated
interest in the procurement. Id. at 732. This Court agreed with the plaintiff and found the Air
Force’s sole source award was arbitrary and capricious because, among other reasons: (1) the
J&A rested on unsupported factual conclusions; (2) the FAR prohibits reliance on both the “only
one responsible source” and “unusual and compelling urgency” provisions of sole-source
authority; (3) the Air Force did not conduct meaningful market research, violating the FAR; (4)
the J&A failed to list plaintiff as an interested source, despite having repeatedly expressed
interest; and (5) the Air Force failed to request offers from as many sources as practicable under
the circumstances. Id. at 729–33.
The present procurement does not suffer the same legal failings as those documented in
Innovation Development. In this case, the 2019 J&A invoked the “unusual and compelling
urgency” exception to competitive procurements as authorization. AR at 836. The J&A
therefore must include, among other things, “[a] description of efforts made to ensure that offers
are solicited from as many potential sources as is practicable.” 48 C.F.R. § 6.303-2(b)(6).
Plaintiff argues the 2019 J&A was factually and legally flawed because it claims the J&A
incorrectly asserts Fischer Panda was the only approved source for the APUs. Pl.’s MJAR at 16.
A detailed review of the J&A, however, shows that it thoroughly explained the urgency of the
Army’s requirements and the importance of the supplier having FAT approval due to this
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urgency. See AR at 836–37. Moreover, the J&A detailed several steps the Army took to ensure
it solicited offers from as many sources as possible, inter alia: it conducted market research; it
published an RFI to FBO; and it considered the procurement history and past suppliers. See id.
at 838–89.
To the extent plaintiff considered itself technically qualified to produce the APUs, it had
the opportunity to respond to the RFI in April 2019, yet failed to do so. See Tr. at 14:11–15 (The
Court: “[T]he Army published an RFI concerning the procurement in April 2019. Why did SSI
not respond to that?” [Plaintiff’s Counsel]: “Your Honor, . . . I don’t know the answer to
that. . . . I don’t know if they were aware of it.”). Ultimately, the Army’s research showed the
only supplier that could produce quality APUs in the least amount of time was Fischer Panda.
See AR at 838–40. The Army’s determination that, besides FAT, “no other type of quality
assurance testing is acceptable,” especially given the last APU production for the Army was in
2017, is tantamount to an agency’s technical evaluation. AR at 837. An agency’s technical
evaluations are “discretionary determinations . . . that a court will not second guess.” E.W. Bliss
Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). In short, the 2019 J&A sufficiently
explains the steps the Army took to solicit offers from as many sources as practicable; it
therefore does not violate FAR 6.303-2(b)(6).
The record further shows the Army had an unusual and compelling urgency to procure
APUs beginning in 2017. The 2018 Statement of Urgency Worksheet details the beginning of
this urgency: “[t]he US Army is in a critical supply position caused by the only supplier at the
time, Minowitz Manufacturing Company went out of business at time of award of solicitation
contract SPRDL116R0035.” AR at 559. DLA therefore awarded a competitive contract to
Essex, but because it was “Essex’s first time producing the APU, First Article Testing (FAT)
[was] required and . . . due in August 2018.” Id. In the interim, TACOM “actively research[ed]
alternatives to increase available stock and determined Fischer Panda Inc., a new supplier of
APUs, can start making deliveries of 15/month in 5 to 6 months after contract award.” Id. at
535. Although DLA ultimately did not move forward with that procurement in 2018, in an effort
to proactively address its needs, DLA stated the “urgent buy will support the reduction of the
Government’s backlog while Essex works on completing FAT.” Id. DLA, and later ACC,
continued to work with Essex on obtaining FAT approval, but even after a time extension, Essex
failed to pass FAT. Id. at 837. At this time, by April-May 2019, ACC had no other option but to
terminate Essex’s contract and pursue a sole source award because the backorder of APUs was
only increasing. Id. Based on these facts and the 2019 J&A’s explanation of the Army’s urgent
need for APUs produced by a supplier which holds a current FAT approval, the Court finds the
Army properly invoked the “unusual and compelling urgency” authority to pursue a sole source
award to Fischer Panda. See Emery Worldwide Airlines, Inc., 264 F.3d at 1085 (“[T]he agency’s
action must be upheld as long as a rational basis is articulated and relevant factors are
considered.”) (citing Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43); Bowman Transp., 419 U.S. at
285–86.
Plaintiff complains the Army did not contact it the same way the Army contacted Fischer
Panda, despite knowledge that plaintiff was a prior APU supplier. Pl.’s MJAR at 16. FAR
9.303(b) provides FAT testing may be appropriate, even for a contractor which previously
produced the given product for the government, where (1) “[t]here have been subsequent
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changes in processes or specifications;” or (2) “[p]roduction has been discontinued for an
extended period of time,” among other reasons. The record shows plaintiff last contracted to
produce APUs in 2009, and its FAT dates back to 2006. See AR at 87 (SSI 1 November 2006
FAT approval), 528 (AMC Form 1095G detailing APU procurement history). The specifications
for the APU have also changed since plaintiff last produced the APU. Tr. at 31:6–20. Plaintiff
further moved manufacturing facilities since its last APU production. AR at 287 (SSI Fat
Waiver Worksheet).
Accordingly, the administrative record confirms that even if the Army contacted plaintiff,
the combination of changes to the APU specifications and decade time gap since plaintiff last
produced APUs demonstrates plaintiff was not qualified. This Court rejected similar arguments
in L-3 Communications and reasoned the Army’s prior award to supply goods does not
demonstrate the Army failed to maximize competition in a subsequent procurement, particularly
when the procurement is for highly technical goods for which the specifications have changed.
See L-3 Commc’ns, 85 Fed. Cl. at 676. Likewise, in this case, just because plaintiff was a prior
APU supplier does not mean—after APU specifications changed and plaintiff did not produce
the same APU for years—the Army is duty-bound to solicit an offer from a vendor it reasonably
concludes does not have the requisite capability. The Army’s failure to contact plaintiff
therefore does not render the 2019 J&A’s factual conclusions arbitrary and capricious. See
Emery Worldwide Airlines, Inc., 264 F.3d at 1086 (quoting 5 U.S.C. § 706(2)(A) (“[A]
reviewing court must set aside agency actions that are ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’”).
2. Alleged Factual Discrepancies in the Administrative Record
Plaintiff also claims the J&A was arbitrary and capricious due to factual discrepancies.
Taking these in turn, plaintiff first challenges the urgency of this procurement, noting the 18-
month gap between the Army’s first stated urgent requirement for APUs and its publication of
the J&A. Pl.’s Suppl. Br. at 2. What this argument misses, though, is throughout 2018 and early
2019, the government was working with Essex to ensure Essex could pass FAT and produce the
APUs. See AR at 535. The Army could still have considered its need for APUs “urgent” in
2018 despite having a contract at the time because it had not received APU shipments since
2017. The record shows the Army acted diligently in locating another APU supplier once it
suspected Essex may not timely pass FAT.
Plaintiff next points to the 2019 J&A’s assertion that “[i]n February 2019, the M88 APU
inventory manager and CCDC engineer contacted Fischer Panda” as being inconsistent with
portions of the record showing the government contacted Fischer Panda as early as February
2018. AR at 838. The record shows the government contacted Fischer Panda both in February
2018 and February 2019; these two contacts are not mutually exclusive. Nowhere in the 2019
J&A does the Army claim February 2019 was the first time it contacted Fischer Panda. This
factual conclusion is not inconsistent with anything in the record and does not render the 2019
J&A arbitrary or capricious. As the record demonstrates, DLA reached out to Fischer Panda as
soon as it learned it was a potential supplier with a January 2018 FAT approval. See Decl. of
Sara L. Coger ¶ 6, ECF No. 30-1 (“Coger Decl.”). The Army had not received APUs since prior
to Minowitz going out of business in January 2017, and its needs became more significant
- 18 -
throughout 2018. See id. ¶ 4. Although DLA competitively awarded a long-term contract to
Essex, Essex could not meet deadlines, even after extension, to timely pass FAT and fulfill the
Army’s urgent need. Id. ¶ 5 (“At the time of termination of the contract, the FAT was past due
by almost nine months. . . . Essex had twenty months to complete FAT and was unsuccessful.
The Army was unable to proceed with Essex without putting the soldiers and mission at great
risk.”).
Further, plaintiff urges the Army decided to award Fischer Panda a sole source contract
in early 2018. Pl.’s Suppl. Br. at 2. The record, however, shows DLA, which had contracting
authority for APU procurement at the time—not the Army—considered a sole source award and
ultimately decided not to go forward despite pressing communications from the Army regarding
growing APU needs. See AR at 570 (29 January 2019 email from TACOM Major Item Manager
to other TACOM personnel) (“The urgent buy is on hold until March when we will find out if
Essex has completed FAT.”). The Court therefore finds the record does not contain any such
alleged factual discrepancies rendering the 2019 J&A arbitrary and capricious. See Emery
Worldwide Airlines, Inc., 264 F.3d at 1086 (“The test for reviewing courts is to determine
whether the contracting agency provided a coherent and reasonable explanation of its exercise of
discretion.”).
Plaintiff further complains the Army did not contact SSI at the time it contacted Fischer
Panda. Pl.’s Suppl. Br. at 2. For the same reasons discussed supra, the Army’s failure to contact
was not arbitrary or capricious. See Emery Worldwide Airlines, Inc., 264 F.3d at 1085 (quoting 5
U.S.C. § 706(2)(A) (“[A] reviewing court must set aside agency actions that are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’”). Further, the
Court notes the Army posted an RFI to FBO to solicit information from potential suppliers
despite no requirement to do so. See AR at 209–12. Plaintiff had the opportunity to submit a
response, just like the two vendors that did respond, but plaintiff did not. See Tr. at 14:11–16.
Lastly, although only tangentially raised in its briefing, see Pl.’s MJAR at 20, during oral
argument, plaintiff challenged the urgency of procuring 210 APUs, rather than a smaller number
such as the 57 APU backlog the TACOM Inventory Management Specialist notes in her
declaration. See Tr. at 40:1–2; Coger Decl. ¶ 8. Plaintiff urged the Court to consider the urgency
of the Army procuring 210 APUs on a sole source basis since the Army recently released the
solicitation for the next competitive APU procurement for 105 APUs over a three-year period.
Tr. at 40:3–19. In response, the government explained, “the agency has been cannibalizing
conversion kits and it will have to replace the APUs for those conversion kits so that vehicles
that are currently using the old APU can be converted to the current APU.” Id. at 42:2–6. The
government continued by arguing, “the Army is in the best position to know what its urgent and
compelling needs are, and that’s what they’ve outlined. Second guessing the Army and how
many APUs are needed to keep people safe and to keep service members safe and to keep
vehicles in operation, that’s not our job here.” Id. at 42:9–15. The 2019 J&A depicts a table
totaling the Army’s APU needs: 67 backordered APUs; 118 APUs estimated to meet the Army’s
needs until the next competitive awardee can produce following FAT; and 25 APUs to support
vehicle shortages. AR at 837. Considering the Army has been out of stock of APUs since 9
August 2017, and awarding a new competitive contract with FAT would unquestionably take
significant production lead time, the Court finds the Army’s stated needs reasonable. The
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administrative record demonstrates that the Army has voiced an urgent APU need for over 24
months; the Army’s estimates for its urgent APU requirement is a “discretionary determination[]
of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449.
The Court finds the 2019 J&A sufficiently documented the steps the Army took to solicit
offers from as many potential sources as practicable in accordance with FAR 6.302-2, and the
2019 J&A’s factual assertions are well supported in the record.
C. Whether Inviting Plaintiff to Submit a FAT Waiver Request was Arbitrary,
Capricious, or Otherwise Not in Accordance with Law
Plaintiff argues “[t]he Army violated its duty to ensure that contractors receive ‘impartial,
fair, and equitable treatment’ in the contracting process” by allegedly holding plaintiff to a
different FAT standard than Fischer Panda and from the Solicitation. Pl.’s MJAR at 13 (quoting
48 C.F.R. § 1.602-2(b)). Despite the 2019 J&A’s discussion of FAT approval, plaintiff notes
“the Army issued the Solicitation without a FAT approval requirement.” Id. at 14. Plaintiff
therefore challenges the Army’s requirement that plaintiff request a FAT waiver because “unlike
[plaintiff], the Army never asked Fischer Panda for a FAT waiver.” Id. Consequently, plaintiff
claims “the FAT requirement appears to have been waived altogether for Fischer Panda resulting
in it being held to [a] lower threshold than [plaintiff] to be considered for award.” Id. Further,
plaintiff maintains “if [plaintiff] (the holder of an Army-approved FAT for producing the subject
APU’s [sic]) is subjected to a FAT Waiver, then Fischer Panda should have had to undergo the
FAT Waiver process since it does not hold an Army- approved FAT.” Id. Lastly, “[t]o the
extent an unstated FAT requirement can be somehow inferred from the record . . . the
Government must apply the requirement equally among offerors.” Id. at 15.
The government responds, arguing it was reasonable for the Army to deny plaintiff’s
FAT waiver request. Def.’s MJAR at 15. The government cites FAR 9.303(b) to argue Army
personnel reasonably determined plaintiff would require a new FAT because plaintiff moved its
manufacturing facility, one of the circumstances in which FAR 9.303(b) considers it appropriate
to require a new FAT. Id. at 15–16. Further, “contrary to [plaintiff’s] argument that its 2006
FAT approval renders the decision irrational, . . . . nothing in the contract’s waiver clause
suggests that the Government is required to or should approve a waiver simply because a
contractor previously had passed a FAT.” Id. at 16 (citing FAR 52.209-3(h)). The government
also contends the Army’s denial of plaintiff’s FAT waiver request was reasonable because
plaintiff has not produced the APUs in approximately 10 years and the APU specifications have
changed nine times since 2009: “the current Hatz APU is not identical to the APU that [plaintiff]
produced in the past.” Id. In response to plaintiff’s distinction between its government-issued
FAT and Fischer Panda’s BAE-issued FAT, the government points out “neither the solicitation
nor the J&A required that the FAT be performed by the Government,” and the government only
required “that the potential contractor already possess an approved FAT or be eligible for a
waiver.” Id. at 11. Lastly, the government explains the Solicitation did not include a FAT
requirement “because ‘a FAT waiver was not contemplated in the J&A since Fischer Panda has
an approved FAT [and] the effect of a FAT waiver is the same as an approved FAT; namely, a
new FAT will not be required.’” Id. at 13 (quoting AR at 201 n.4 (Combined Contracting
Officer’s Statement of Facts and Legal Memorandum from GAO protest)).
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1. The Army’s Denial of Plaintiff’s FAT Waiver Request
As previously stated, FAR 9.303(b) provides FAT may be appropriate when a “contractor
previously furnished the product to the Government, but— (1) There have been subsequent
changes in processes or specifications; [or] (2) Production has been discontinued for an extended
period of time.” In addition, FAR 52.209-3(h) provides “[t]he Government may waive the
requirement for first article approval test where supplies identical or similar to those called for in
the schedule have been previously furnished by the offeror/contractor and have been accepted by
the Government. The offeror/contractor may request a waiver.” The record shows plaintiff “has
not produced this part in over 10 years, has not completed a successful FAT on this part in the
past 13 years and has had a major change in [its] process, by moving [its] manufacturing location
of this part.” AR at 402 (“355 Attributes” document recommending plaintiff’s FAT waiver
request be denied). Agency analysis of production history and timing for FAT waiver
consideration is a “discretionary determination[] of procurement officials that a court will not
second guess.” E.W. Bliss Co., 77 F.3d at 449. To the extent that plaintiff argues its FAT waiver
request was improperly denied, given the amount of time since plaintiff passed FAT approval
and produced APUs, the Army’s denial of its FAT waiver was a reasonable exercise of the
agency’s discretion.
2. The Army’s Application of Different FAT Standards to Plaintiff and
Fischer Panda
Plaintiff also argues the Army violated FAR 1.602-2(b) by holding it to a different FAT
standard than Fischer Panda; in other words, the Army treated the two differently by requiring
plaintiff to request FAT waiver, but not asking the same of Fischer Panda. Pl.’s MJAR at 13.
FAR 1.602-2(b) requires a contracting officer to “[e]nsure that contractors receive impartial, fair,
and equitable treatment.” This was not a competitive procurement, though; the Solicitation
contemplated award solely to Fischer Panda. The Court is not aware of—and plaintiff does not
point to—any provision of law requiring the government to consider plaintiff a potential offeror
when it submitted a late proposal in response to the sole source Solicitation.
The record demonstrates part of what caused the urgency of this procurement was
Essex’s failure to timely pass FAT. DLA awarded Essex its contract on 1 August 2017, and
Essex had twenty months to pass FAT. Coger Decl. ¶ 5. The original deadline for Essex to pass
FAT was 10 August 2018, which DLA agreed to extend to 29 March 2019. AR at 837
(unredacted 2019 J&A). At the time ACC terminated Essex’s contract for default, “the FAT was
past due by almost nine months.” Coger Decl. ¶ 5. Since the Army had not received APUs since
prior to 2017 and Essex would not be able to produce APUs, the Army’s growing and urgent
need for APUs only increased. The Army could not risk further delay by awarding another APU
contract to a vendor without the demonstrated technical capability to produce APUs—capability
that is demonstrated by a current FAT, which the Army determined plaintiff does not possess.
As explained in the 2019 J&A, “FAT is required to validate prospective contractors have the
manufacturing capability, processes, and facilities to produce the APUs [in accordance with] the
technical requirements of this procurement.” AR at 837. Although plaintiff passed FAT in
2006, the APU plaintiff produced in 2006 is not the same APU the Army now requires; the
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specifications have since changed. See Tr. at 31:6–20. Fischer Panda, on the other hand, passed
FAT more recently in January 2018, and is a current supplier of the exact APUs the Army needs.
Moreover, the Army afforded plaintiff equal treatment by inviting it to submit documentation
showing its technical capability. Plaintiff had the opportunity to respond to the 2019 RFI but did
not do so. The Army provided plaintiff with another chance to show its interest and capability
by reviewing the August 2019 FAT waiver request. See AR at 408 (27 September 2019 letter
from CO to plaintiff) (“SSI Technology was invited to submit a First Article Test (FAT) waiver
request . . . in an attempt to include SSI Technology in the current action. If the FAT waiver
request was approved, [the Solicitation] would have been amended to list SSI Technology as a
limited source along with Fischer Panda.”). Furthermore, Fischer Panda did not need to request
FAT waiver because “the effect of a FAT waiver is the same as an approved FAT; namely, a
new FAT will not be required.” AR 201 n.4 (Combined Contracting Officer’s Statement of
Facts and Legal Memorandum from GAO protest). Additionally, the government asserts the
FAR does not require FAT approval be conducted by the government as opposed to a private
party, which plaintiff does not dispute. Tr. at 34:11–12 ([DOJ Counsel:] “the FAR doesn’t
require the Government to be the one who does the testing.”); 63:25–64:3 ([Plaintiff’s Counsel:]
“I don’t suggest to the Court that a private contractor or private approval process is not
permissible. It’s clearly permissible. [FAR] 9.307 allows that.”).
Accordingly, the Army reasonably concluded “Fischer Panda is the only approved source
to have an approved FAT for this requirement.” AR at 838 (unredacted 2019 J&A). Requiring
current FAT approval or a FAT waiver, which the Army is in the best position to evaluate, is part
of the Army’s discretion in conducting its procurements, and the Court must afford deference to
the Army’s exercise of discretion. See E.W. Bliss Co., 77 F.3d at 449 (“[M]inutiae of the
procurement process in such matters as technical ratings . . . involve discretionary determinations
of procurement officials that a court will not second guess.”). The GAO has similarly held that
FAT requirements are within the agency’s discretion and accorded deference by the reviewing
entity. See Vision Blocks, Inc., B-281246, 99-1 CPD ¶ 20 (“An agency’s decision to waive a
FAT requirement is largely discretionary since the requirement is for the protection and benefit
of the government, and our Office will not disturb that decision unless we find it to be
unreasonable.”). The Court therefore finds the Army acted reasonably in recognizing FAT
approval for Fischer Panda and was not arbitrary and capricious in later denying plaintiff waiver
of FAT. See Emery Worldwide Airlines, Inc., 264 F.3d at 1086 (“When a party contends that the
procurement procedure in a sole-source case involved a violation of a statute, regulation, or
procedure, it must establish prejudice by showing that it would have had a substantial chance of
receiving the award.”). The Army’s determination that Fischer Panda’s technical capability and
FAT approval were better suited for this procurement, rather than plaintiff’s outdated Army FAT
approval and inexperience with the current APU specification, is a “discretionary determination[]
of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449.
D. Prejudice to Plaintiff by Issuance of a Sole Source Award to Fischer Panda
Lastly, plaintiff argues “the Army’s decision to issue a sole source award to Fischer
Panda violates federal procurement law causing SSI significant competitive prejudice.” Pl.’s
MJAR at 17. The urgency of this procurement dates to 2017, when the Army’s APU supplier,
Minowitz, went out of business. DLA subsequently competitively awarded a contract to Essex, a
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new APU vendor, while maintaining an urgent need for APUs. This urgency grew while Essex
requested extension of its FAT deadline, ultimately failing to timely pass FAT. By the time the
Army terminated Essex’s contract because it defaulted on its obligations on 14 May 2019, the
Army sustained nearly two years without an APU stock. DLA and ACC personnel worked
diligently to find an alternative supplier—Fischer Panda—while mitigating supplier issues. The
culmination of these factors led the Army to award a sole source contract to the only supplier it
knew was approved to produce APUs, an award that was reasonable, and which the Court will
not disturb.
“The arbitrary and capricious standard applicable here is highly deferential,” and
“requires a reviewing court to sustain an agency action evincing rational reasoning and
consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman
Transp., 419 U.S. at 285). In the instant bid protest, plaintiff has not demonstrated the Army
violated any statute, regulation, or procedure, nor that it was prejudiced by any potential errors in
the 2019 J&A. Plaintiff does not hold a current FAT for production of APUs, and the Army has
an urgent requirement for the unique specification APUs Fischer Panda demonstrated an ability
to produce beginning January 2018. The Court therefore holds the Army’s decision to award a
sole source contract to Fischer Panda evinces rational reasoning and consideration of all relevant
factors. See Emery Worldwide Airlines, Inc., 264 F.3d at 1086 (“Under [the Administrative
Procedure Act] standard, the agency’s action is entitled to a presumption of regularity, and the
agency’s action must be upheld as long as a rational basis is articulated and relevant factors are
considered.”) (internal quotation marks omitted).
E. Injunctive Relief
Contemporaneous with filing its complaint, on 23 December 2019, plaintiff filed an
application for temporary restraining order and motion for preliminary injunction. See Appl. for
TRO & Mot. for Prelim. Inj., ECF No. 5. On 2 January 2020, the Court deferred ruling on this
motion because the government agreed to voluntarily stay contract award pending resolution of
this bid protest. See Order, ECF No. 11. In its motion for judgment on the administrative
record, plaintiff requested a permanent injunction. See Pl.’s MJAR at 19–23. As previously
stated, the Court considers the following factors when determining whether to issue a permanent
injunction: “(1) whether . . . the plaintiff has succeeded on the merits of the case; (2) whether the
plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the
balance of hardships to the respective parties favors the grant of injunctive relief; and (4)
whether it is in the public interest to grant injunctive relief.” PGBA, LLC, 389 F.3d at 1228–29.
Turning first to factor one, plaintiff is not entitled to injunctive relief because plaintiff does not
prevail on the merits. The Court therefore does not reach the remaining prongs of the test for a
permanent injunction. Info. Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340, 357
n.32 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) (“Absent success on the merits, the other
factors are irrelevant.”).
IV. Conclusion
The Court finds the Army conducted this sole source procurement reasonably and
declines plaintiff’s invitation to disturb the Army’s decision to award a sole source contract to
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Fischer Panda. For the foregoing reasons the Court: (1) DENIES plaintiff’s motion for
judgment on the administrative record; (2) GRANTS the government’s cross-motion for
judgment on the administrative record; and (3) DENIES AS MOOT plaintiff’s application for
temporary restraining order and motion for preliminary injunction. The Clerk is directed to enter
judgment in accordance with this disposition.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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