United States Court of Appeals
for the Federal Circuit
__________________________
TURNER CONSTRUCTION CO., INC.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant,
and
MCCARTHY/HUNT, JV,
Defendant,
and
B.L. HARBERT-BRASFIELD & GORRIE, JV,
Defendant-Appellant.
__________________________
2010-5146
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-195, Senior Judge Bohdan A.
Futey.
__________________________
Decided: July 14, 2011
__________________________
SCOTT M. MCCALEB, Wiley Rein, LLP, of Washington,
DC, argued for plaintiff-appellee. With him on the brief
TURNER CONSTRUCTION v. US 2
were WILLIAM A. ROBERTS, III and NICOLE J. OWREN-
WIEST. Of counsel was BRIAN G. WALSH.
DAVID A. EDELSTEIN, Asmar, Schor & McKenna,
PLLC, of Washington, DC, argued for defendant-
appellant. With him on the brief were LAURENCE SCHOR,
SUSAN L. SCHOR and DENNIS C. EHLERS.
__________________________
Before BRYSON, CLEVENGER, and PROST, Circuit Judges.
PROST, Circuit Judge.
The United States Army Corps of Engineers (“Army”)
awarded Appellee Turner Construction Company, Inc.
(“Turner”) a contract for the construction of a government
hospital. Turner’s two rival bidders for the contract,
Appellant B.L. Harbert-Brasfield & Gorrie (“Harbert-
Gorrie”) and McCarthy/Hunt, each filed a bid protest with
the Government Accountability Office (“GAO”). The GAO
recommended that the contract be re-procured without
Turner’s participation. In due course, the Army an-
nounced that it would follow the GAO’s recommendation
and terminated Turner’s contract. Turner then filed the
present action in the United States Court of Federal
Claims to contest the termination and re-procurement.
Because we agree with the trial court that the Army’s
decision to follow the GAO’s recommendation was unrea-
sonable, we affirm the judgment of the Court of Federal
Claims.
BACKGROUND
At issue is a potential organizational conflict of inter-
est (“OCI”) that arose during the Army’s procurement for
the construction of a government hospital at Fort Ben-
ning, Georgia. The relationship underlying the potential
3 TURNER CONSTRUCTION v. US
OCI is an attenuated one—intermittent merger discus-
sions that occurred during the procurement process
between Turner’s design subcontractor and the parent
company of the Army’s design consultant.
A
In June 2007, the Army contracted with the joint ven-
ture of Hayes, Seay, Mattern & Mattern (“HSMM”) and
Hellmuth, Obata, and Kassbaum (“HOK”) (collectively,
“HSMM/HOK”), to prepare the design requirements for
the hospital and to assist with the technical review of the
proposals that would be submitted. At all times relevant
to this case, one member of the joint venture, HSMM, was
owned by AECOM Technology Corporation (“AECOM”).
After selecting HSMM/HOK as its design consultant, the
Army proceeded with the procurement in two phases. In
Phase l, potential offerors submitted performance and
capability information. Selected offerors then received
the Phase II technical requirements package for the
hospital and were invited to provide technical and cost
proposals. HSMM/HOK’s involvement was limited to
providing materials and advice during Phase II.
HSMM/HOK was not involved with preparing materials
for Phase I or selecting offerors to proceed to Phase II.
In June 2008, the Army issued the Phase I solicitation
for the hospital contract. Four firms responded to the
Phase I solicitation in October 2008, and three firms were
selected in December 2008 to advance to Phase II: Defen-
dant-Appellee Turner, Plaintiff-Appellant Harbert-Gorrie,
and McCarthy/Hunt. Turner’s design partner and pro-
posed subcontractor for the project was Ellerbe Becket
(“EB”). The work that EB was to perform constituted
about 1.5% of Turner’s bid.
TURNER CONSTRUCTION v. US 4
HSMM/HOK finished preparing the final Phase II
technical requirements package by April 2009. The
offerors’ Phase II proposals were due several months later
on July 7, 2009. Shortly thereafter, the Army’s thirty-
four member technical review board, which included four
consultants from HSMM, reviewed the proposals and
prepared comments. On August 24, 2009, the Source
Selection Authority determined that Turner represented
the best value for the Army. The Army awarded Turner a
$333,359,000 contract on September 28, 2009.
B
At various times during the procurement process,
Turner’s design partner EB was in merger talks with
HSMM’s parent company AECOM. Specifically, in May
2008, one month before the Phase I solicitation, AECOM
and EB executed a confidentiality agreement regarding
AECOM’s possible acquisition of EB. Some twenty-five to
thirty AECOM employees were involved with the due
diligence investigation of EB. None of these employees
was part of the HSMM/HOK joint venture team assisting
the Army with the hospital project.
AECOM was not the only company pursuing the ac-
quisition of EB. By June 2008, four other firms had
expressed interest in buying EB, and EB decided to
conduct a multi-party auction. Three firms, including
AECOM, submitted bidding letters of interest to EB in
late August and early September. AECOM’s bid was not
the highest offer. EB pursued negotiations with AECOM
and the highest bidder, but failed to successfully negotiate
mutually acceptable terms with either firm. In November
2008, EB terminated negotiations with all bidders.
5 TURNER CONSTRUCTION v. US
AECOM’s negotiations with EB terminated before
HSMM/HOK provided the Army any advice or materials
for the Phase II solicitation. In December 2008,
HSMM/HOK submitted draft technical provisions for
Phase II to the Army. The Army sought comments from
all three participating offerors, and HSMM/HOK revised
the provisions in response to this input. The final revised
Phase II technical provisions, which were twice as long as
the draft version, were released in April 2009.
In May 2009, after the Phase II solicitation materials
were complete, AECOM reopened negotiations with EB.
This round of negotiations ultimately led to a successful
merger in late October 2009.
C
Some signs of a potential OCI arose during the pro-
curement process. AECOM first became aware of a
potential conflict on August 7, 2008. On that day, the
senior vice president in charge of the HSMM/HOK hospi-
tal design contract attended an industry forum held by
the Army about the upcoming hospital project. At the
industry forum, the AECOM executive learned for the
first time of EB’s interest in the project. The executive
consulted with his supervisor about the potential for a
conflict of interest to arise if AECOM acquired EB, and
his supervisor told him that negotiations with EB “had
not been productive.” A few weeks later, the executive
learned that AECOM’s negotiations with EB had been
suspended, and he concluded that there was no further
potential conflict. The AECOM executive did not report
the failed negotiations to the Army.
In February 2009, approximately three months after
EB terminated its negotiations with AECOM, the
TURNER CONSTRUCTION v. US 6
AECOM executive and the Army’s project manager ex-
changed emails about whether any potential OCIs ex-
isted. The executive inquired internally as to what
relations existed between AECOM and the three Phase II
offerors and their subcontractors. On February 6, 2009,
the executive reported to the Army that only “teaming
relationships” existed.
The AECOM executive did not further consider
AECOM’s relationship with EB until he arrived to attend
sessions of the technical review board on July 20, 2009.
Four HSMM employees were participating, and all certi-
fied that they had no known conflicts of interest. When
the executive was asked to certify that he had no known
conflicts of interest, he made several telephone calls to
determine whether an OCI existed. Because he knew
that EB was Turner’s subcontractor, he specifically in-
quired whether AECOM was currently in negotiations
with EB. He learned that negotiations had resumed, and
he immediately informed the Army’s project manager of a
potential OCI and asked to meet with the contracting
officer (“CO”) to discuss the situation.
The AECOM executive met with the CO and the
Army’s counsel the following day. The executive dis-
cussed his concerns that a potential OCI with a subcon-
tractor might arise but did not identify which offeror or
subcontractor, due to confidentiality agreements between
AECOM and EB. According to the CO, this was the first
time that she became aware of any potential OCI. Be-
cause the executive was the only AECOM employee at the
technical review board meeting who knew of the potential
merger, he proposed that he recuse himself from the
meeting to avoid any potential conflict. The Army agreed
that the executive’s recusal would sufficiently prevent any
possible conflict of interest.
7 TURNER CONSTRUCTION v. US
Shortly after EB’s merger with AECOM was publicly
announced on October 26, 2009, the two losing offerors
filed bid protests before the GAO. Appellant Harbert-
Gorrie’s protest alleged that Turner/EB had “unequal
access” and “biased ground rules” OCIs. Prior to the filing
of these bid protests, the CO had not conducted a compre-
hensive, documented investigation into whether OCIs
existed beyond the meeting between the AECOM execu-
tive, Army counsel, and the CO. At the inception of the
bid protests, the CO submitted a short five-page state-
ment. She supplemented the statement with a 150-page
report after conducting a comprehensive investigation,
which included gathering forty-two declarations from
involved persons and conducting telephone interviews
with the HSMM employees who were part of the technical
review board. The CO considered each possible OCI and
found that no OCIs existed prior to award of the hospital
contract.
D
On February 19, 2010, the GAO issued an eleven-page
decision in Harbert-Gorrie’s bid protest. The GAO dis-
agreed with the CO’s conclusion that no OCI existed prior
to award of the hospital contract and sustained Harbert-
Gorrie’s “unequal access” and “biased ground rules”
protests. B.L. Harbert-Brasfield & Gorrie, JV, B-402229
(Comp. Gen., Feb. 16, 2010), at 11. Unequal access OCIs
can occur when a company has access to nonpublic infor-
mation in performing a government contract that may
give it a competitive advantage in a later competition for
a government contract. The GAO’s conclusory, three-page
analysis of whether an unequal access OCI existed fo-
cused on the potential for access to nonpublic information,
rather than on whether AECOM or EB personnel actually
obtained access to competitively useful, nonpublic infor-
TURNER CONSTRUCTION v. US 8
mation. Id. at 6-9. The GAO presumed that the forty-
nine AECOM employees working on the hospital contract
used e-mail in conducting their work for the Corps. It
noted that, although AECOM affiliates outside of the
team working on the hospital contract did not automati-
cally have access rights to data on the servers by virtue of
their employment, the GAO saw no evidence anywhere in
the record that there were specific efforts to limit access
by others to such e-mail. Focusing on the various ways in
which AECOM and EB personnel might have had access
to each other’s information, the GAO concluded: “[W]ith
respect to the AECOM employees who worked on the
design contract, without credible evidence that AECOM
had systems in place to prevent the receipt of competi-
tively useful information by EB, there is no reasonable
basis to assume that the information was not made avail-
able to EB employees.” Id. at 9. In finding that such
potential access existed, the GAO noted that an unequal
access OCI may be mitigated through the implementation
of an effective mitigation plan, but the GAO ultimately
determined that AECOM’s access restrictions themselves
were deficient and that the CO had not been sufficiently
involved in crafting and monitoring any mitigation ef-
forts.
The biased ground rules category of OCIs focuses on
the concerns that a company may, by participating in the
process of setting procurement ground rules, have special
knowledge of the agency’s future requirements that may
skew the competition in its favor. The GAO’s two-page
analysis concluded that AECOM had special knowledge of
the Army’s requirements that would have enabled it to
give Turner/EB an unfair advantage in the competition.
Id. at 9-11. The GAO noted that there was no evidence
that the Army closely supervised AECOM, but suggested
that even if it had, it would be unreasonable to assume
9 TURNER CONSTRUCTION v. US
such supervision would prevent AECOM from using its
special knowledge to benefit Turner/EB unfairly. Turner
argued that at all times during the Phase II solicitation
development, AECOM and EB were not in fruitful nego-
tiations, and that the AECOM employees assisting the
Army on the procurement had no knowledge of AECOM’s
interest in EB. In rejecting this argument, the GAO
emphasized the lack of process undertaken by AECOM in
determining which of its employees had a need to know of
the negotiations and how confidentiality was ensured.
Because the GAO concluded that the Army lacked a
reasonable basis for its conclusion that the merger discus-
sions between AECOM and EB had not created an OCI,
the GAO sustained Harbert-Gorrie’s bid protest and
recommended that the Army re-compete the hospital
contract without allowing Turner/EB to participate in the
competition.
On March 19, 2010, the Army announced that it
would follow the GAO’s recommendation. A few days
later, the Army notified Turner that it was terminating
its contract for the hospital. On March 31, Turner filed a
bid protest in the Court of Federal Claims. The Court of
Federal Claims ultimately concluded that the Army’s
decision to follow the GAO’s recommendation was arbi-
trary and capricious. Turner Constr. Co. v. United States,
94 Fed. Cl. 561 (2010) (“Turner I”). The Court of Federal
Claims granted Turner injunctive relief, including restor-
ing the hospital contract to Turner. Id. at 585-86.
In granting Turner’s Motion for Judgment on the Ad-
ministrative Record, the Court of Federal Claims con-
cluded that the GAO’s recommendations were irrational.
See, e.g., id. at 581. The court acknowledged that rational
basis review is not a particularly demanding standard,
TURNER CONSTRUCTION v. US 10
but it nonetheless concluded that the GAO’s decision
failed to withstand even that level of scrutiny. Id. The
Court of Federal Claims noted that while the GAO was
tasked with reviewing the Army’s decision for reason-
ableness, the GAO failed to confront the agency’s decision
in any meaningful way. Id. The court emphasized that
the GAO failed to meaningfully consider the CO’s detailed
factual findings and improperly substituted its own
judgment for that of the CO’s. It found that the GAO had
relied on mere “suspicion or innuendo” rather than identi-
fying “hard facts” showing an appearance of impropriety,
in contrast to the CO’s thorough investigation and analy-
sis. Id. The Court of Federal Claims further found that
the GAO irrationally discounted the CO’s post-award
investigations and findings. Id. at 574-76.
On August 5, 2010, the Army reinstated Turner’s con-
tract in compliance with the Court of Federal Claims’
order after explicitly concluding that reinstatement was
“advantageous to the Government.” 48 C.F.R. § 49.102(d).
Harbert-Gorrie timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review “rulings on motions for judgment on the
administrative record de novo . . . and factual findings
based on the administrative record for clear error.” PAI
Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir.
2010). In a bid protest case, the agency’s award must be
upheld unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id.
Our inquiry under these facts requires assessing whether
the Army’s decision to follow the GAO’s recommendation
“lacked a rational basis.” Id. When applying that stan-
dard of review in the context of reviewing an agency’s
11 TURNER CONSTRUCTION v. US
decision to follow a GAO recommendation, we have stated
that an agency’s decision lacks a rational basis if it im-
plements a GAO recommendation that is itself irrational.
Centech Grp. v. United States, 554 F.3d 1029, 1039 (Fed.
Cir. 2009); Honeywell, Inc. v. United States, 870 F.2d 644,
648 (Fed. Cir. 1989). Thus, our task is to evaluate the
rationality of the GAO decision. It is well settled that
COs are given broad discretion in their evaluation of bids.
R & W Flammann GmbH v. United States, 339 F.3d 1320,
1322 (Fed. Cir. 2003). When an officer’s decision is rea-
sonable, neither a court nor the GAO may substitute its
judgment for that of the agency. Id.
The issues before us are whether EB’s relationship
with AECOM gave Turner/EB a competitive advantage
over the other bidders, and whether the CO failed to
exercise proper discretion and to follow proper procedures
in making the determination that no OCI existed. The
Federal Acquisition Regulations (“FAR”) recognize that
“the identification of OCIs and the evaluation of mitiga-
tion proposals are fact-specific inquiries that require the
exercise of considerable discretion.” Axiom Res. Mgmt. v.
United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009) (citing
48 C.F.R. § 9.505). The FAR requires that “[e]ach indi-
vidual contracting situation should be examined on the
basis of its particular facts and the nature of the proposed
contract.” 48 C.F.R. § 9.505. At the same time, the CO
“should avoid . . . unnecessary delays . . . and excessive
documentation.” Id. § 9.504(d). The exercise of “common
sense, good judgment, and sound discretion” is required in
both the decision on whether a significant potential
conflict exists and, if it does, the development of an ap-
propriate means for resolving it. Id. § 9.505; see also
Axiom, 564 F.3d at 1382.
TURNER CONSTRUCTION v. US 12
Harbert-Gorrie alleges that the Court of Federal
Claims made three errors that require reversal: (1) the
Court of Federal Claims improperly engaged in a de novo
review of the GAO’s decision rather than giving it proper
deference; (2) the Court of Federal Claims erroneously
relied on the CO’s post-award, post-protest OCI investiga-
tion and analysis; and (3) the Court of Federal Claims
misapplied the “hard facts” requirement. In addition,
Harbert-Gorrie contends that even if the Court of Federal
Claims correctly held that the Army’s decision to follow
the GAO decision was arbitrary and capricious, the Court
of Federal Claims exceeded its jurisdiction and committed
an error of law by directing the Army to reinstate
Turner’s contract. We address each argument in turn.
A
Harbert-Gorrie first accuses the Court of Federal
Claims of improperly engaging in de novo review of the
GAO decision. This argument is misplaced because the
text of the Court of Federal Claims’ opinion makes plain
that the court applied the proper standard of review.
The Court of Federal Claims correctly articulated the
Honeywell standard that applies here and emphasized
that it cannot conduct its “own independent de novo
assessment.” Turner I, 94 Fed. Cl. at 571, 574, 579. The
court acknowledged that “‘the controlling inquiry [is]
whether the GAO’s decision was a rational one.’” Id.
(quoting Honeywell, 870 F.2d at 647). Recognizing that
its review was a deferential one, the Court of Federal
Claims nonetheless concluded that the GAO’s decision did
not meet this standard. Id. at 581. It concluded that the
GAO’s decision was not rational because its five-page
analysis failed to give any deference to the CO’s extensive
fact-finding and analysis. As discussed above, this court’s
13 TURNER CONSTRUCTION v. US
precedent from Axiom and PAI make clear that the CO
enjoys great latitude in handling OCIs. Because the GAO
improperly substituted its own judgment for that of the
CO, it was the GAO—not the Court of Federal Claims—
that failed to apply the proper deference in conducting its
review.
The court then applied the correct standard of review,
focusing its extensive analysis on whether the GAO’s
decision to overturn the CO’s determination lacked a
rational basis. For example, the GAO concluded that
HSMM’s and EB’s interests were “effectively aligned” in
August 2008, when AECOM participated in the multi-
party confidential auction for EB that ended before
HSMM provided the Army with any draft technical provi-
sions. The Court of Federal Claims determined that this
conclusion “lacked a rational basis” because it was incon-
sistent with case law, which looks “for a direct financial
benefit between firms, rather than an attenuated or
potential benefit,” and “fail[ed] to engage the CO and the
record.” Turner I, 94 Fed. Cl. at 579. The court noted
that the GAO’s cursory inquiry was a departure from
prior GAO decisions. Id. The court pointed out that the
GAO, in lieu of citing to hard facts of “a sufficient align-
ment of interests” between HSMM and EB, merely stated
that “‘in [its] view’ the record indicated a sufficient align-
ment of interests.” Id.
The court further concluded that the GAO lacked a
rational basis for rejecting the CO’s biased ground rules
determination. Id. at 581. The CO’s analysis of this issue
“tracked the precise state of negotiations between
AECOM and EB, the exact dates upon which critical
changes to the RFP occurred, the exact employees that
could have known of the merger, and numerous other
facts. Using this data, the CO concluded that no OCI
TURNER CONSTRUCTION v. US 14
existed.” Id. at 580. Reiterating that the GAO’s task was
to review the agency’s decision for reasonableness, the
Court of Federal Claims noted that the GAO “failed to
address this OCI decision; in fact, the GAO decision on a
biased ground rules OCI does not even cite the agency
decision that it was tasked with reviewing.” Id. Instead,
“the GAO cites exactly one piece of information [AECOM’s
contract with the Army] . . . to support its finding that the
record ‘suggests’ that AECOM had ‘special knowledge’
that would have given Turner an unfair advantage.” Id.
Concluding that the GAO’s “failure to meaningfully
engage with the agency decision dramatically differs from
prior GAO decisions,” the Court of Federal Claims indi-
cated that the GAO’s determination was not based on
hard facts but rather was based on “mere suspicion and
innuendo.” Id. at 580-81.
The Court of Federal Claims likewise concluded that
the GAO lacked a rational basis for rejecting the CO’s
unequal access determination. Id. at 581-83. Again, the
court noted that the GAO “failed to cite any hard facts,”
pointing only to “vague allegations that someone ‘may
have had access’ to unidentified information or that
someone ‘was familiar with the details.’” Id. at 582. The
court noted that this “lack of concreteness” in the GAO’s
analysis was a departure from precedent. Id. In addition,
the court pointed out that “apart from simply using the
phrase ‘competitively useful,’ the GAO cites to no facts to
support [its] conclusion that EB had access to anything of
competitive worth.” Id. In contrast, the court concluded
that the CO carefully assessed the information that
AECOM may have had access to and determined that this
information “not only lacked competitive utility but was
also disclosed to all of the offerors.” Id.
15 TURNER CONSTRUCTION v. US
Accordingly, the Court of Federal Claims applied the
proper standard of review and did not conduct a de novo
review as alleged by Harbert-Gorrie.
B
Next, Harbert-Gorrie argues that the Court of Federal
Claims erred in considering the CO’s post-award investi-
gation and report in determining that the GAO decision
was irrational. Harbert-Gorrie believes that because this
investigation was not conducted until after the hospital
contract was awarded, it should be given no weight be-
cause the conclusions and statements therein were de-
pendent on facts not known by the CO during the
procurement process. Pointing to the fact that the Army
had not conducted a documented investigation prior to the
award of the contract, Harbert-Gorrie contends that the
Court of Federal Claims erroneously believed that the CO
had no obligation to investigate the potential OCI when
she first became aware of it prior to the award. As a
result, the Court of Federal Claims resorted to relying on
the CO’s post-award report. These arguments, however,
misapprehend the FAR and the Court of Federal Claims’
decision.
Contrary to Harbert-Gorrie’s contentions, the Court of
Federal Claims did not hold that the CO had no duty to
evaluate a potential OCI when she first became aware of
it. Under FAR § 9.504(a), a CO must “[i]dentify and
evaluate potential organizational conflicts of interest as
early in the acquisition process as possible” and “[a]void,
neutralize, or mitigate significant potential conflicts
before contract award.” 48 C.F.R. § 9.504(a) (emphasis
added). These duties are separate. PAI, 614 F.3d at
1352. Although the FAR requires a contracting officer to
identify and evaluate potential conflicts in the early
TURNER CONSTRUCTION v. US 16
stages of the acquisition process, § 9.504(a) does not
require that this preliminary analysis be documented in
writing. If the potential conflict is determined to be a
significant one, the CO must avoid, neutralize, or mitigate
it before the contract award. 48 C.F.R. § 9.504(a). The
CO has considerable discretion in determining whether a
conflict is significant. PAI, 614 F.3d at 1352. “A signifi-
cant potential conflict is one which provides the bidding
party a substantial and unfair competitive advantage
during the procurement process on information or data
not necessarily available to other bidders.” Id. The FAR
therefore requires mitigation of “significant potential
conflicts,” but does not require mitigation of other types of
conflicts, such as apparent or potential non-significant
conflicts. Id.
The Court of Federal Claims did not hold that a CO’s
duty to evaluate potential OCIs is limited to “significant”
OCIs or that a CO may ignore and not evaluate known
potential OCIs prior to award. Rather, the court held,
consistent with PAI, that a CO has two distinct duties
under FAR § 9.504(a): the duty to evaluate potential OCIs
as early as possible and the duty to mitigate significant
potential OCIs before contract award. Turner I, 94 Fed.
Cl. at 574-75. The Court of Federal Claims concluded
that the CO discharged those duties.
With respect to the timing of the CO’s investigations,
the court explained that the FAR “does not require a CO,
in every single procurement, to review and document
whether OCIs exist prior to award.” Id. at 575. Courts
reviewing bid protests routinely consider post-award OCI
analyses and consider evidence developed in response to a
bid protest. See, e.g., Masai Techs. Corp. v. United States,
79 Fed. Cl. 433, 449-50 (2007). In addition, as previously
conceded by Harbert-Gorrie, “[s]ometimes . . . an OCI
17 TURNER CONSTRUCTION v. US
cannot be identified until after award” of the contract.
Turner Constr. Co. v. United States, 94 Fed. Cl. 586, 591
(2010) (“Turner II”). If the first time an allegation or
evidence of a potential OCI appears is after award, then
the earliest time to evaluate that potential OCI as coun-
tenanced by § 9.504(a)(1) might be at that time. A CO’s
post-award evaluation can clear the air of any OCI taint
by showing that no significant OCI existed. If, however,
the CO’s post-award evaluation shows that a significant
potential OCI did exist and went unmitigated in violation
of § 9.504(a)(2), then serious remedial actions are appro-
priate.
Harbert-Gorrie contends that the Court of Federal
Claims erred by not limiting its analysis to assessing the
CO’s actions in July 2009 when she first became aware of
a potential OCI, but that is not the proper inquiry. In
this case, the GAO should have assessed the reasonable-
ness of the CO’s determinations both in July 2009 and in
her post-award investigation in January 2010. The Court
of Federal Claims did not err by considering the CO’s
post-protest investigation and analysis.
C
Harbert-Gorrie’s last attack on the merits of the
Court of Federal Claims’ decision is based on the court’s
application of the “hard facts” requirement. Harbert-
Gorrie acknowledges that an OCI must be based on “hard
facts; a mere inference or suspicion of an actual or appar-
ent conflict is not enough.” PAI, 614 F.3d at 1352. It
claims that the Court of Federal Claims misapplied this
requirement. Specifically, Harbert-Gorrie argues that the
Court of Federal Claims’ analysis indicates that it re-
quired that the “hard facts” show an actual OCI rather
than merely the “appearance” of an OCI. These claims
TURNER CONSTRUCTION v. US 18
are unavailing.
The Court of Federal Claims explicitly acknowledged
that “hard facts” do not need to show an actual conflict—a
potential conflict can be sufficient. Turner I, 94 Fed. Cl.
at 573. Rather, the Court of Federal Claims drew a
distinction between circumstances where “hard facts”
indicate the existence or potential existence of impropri-
ety and circumstances such as these where the finding of
an OCI relies on inferences based upon “suspicion and
innuendo.” Id. (citing C.A.C.I., Inc. v. United States, 719
F.2d 1567, 1582 (Fed. Cir. 1983)). Here, the GAO relied
on its inference that some unnamed HSMM employees
“may have had access” to unidentified information. The
Court of Federal Claims found this inference to be flawed
because the GAO only found possible rather than actual
access. Further, this possible access was to “unidentified
information” rather than specific, sensitive information.
The GAO cited to no facts supporting its conclusion that
EB had access to any information of competitive worth.
The CO specifically identified all information “to which
AECOM may have had access” and found that the infor-
mation lacked competitive utility and was actually dis-
closed to all of the Phase II offerors. Because an unequal
access OCI requires that a firm have access to non-public
information that is competitively useful, Axiom, 564 F.3d
at 1377 n.1, the Court of Federal Claims did not err in its
application of the hard facts requirement.
D
Beyond contesting the merits of the Court of Federal
Claims’ decision, Harbert-Gorrie also contends that the
Court of Federal Claims exceeded its “jurisdiction and
authority” by directing the Army to reinstate Turner’s
contract. Harbert-Gorrie asserts that although this case
19 TURNER CONSTRUCTION v. US
was filed as a bid protest, the termination of Turner’s
contract is actually not a bid protest claim but is more
properly characterized as a claim under the Contract
Disputes Act of 1978 (“CDA”). Harbert-Gorrie argues that
Turner should therefore have been required to comply
with the provisions of the CDA in order to establish
jurisdiction in the Court of Federal Claims for the con-
tract termination aspect of Turner’s claim. Because
Turner did not satisfy the procedural requirements for a
CDA claim, Harbert-Gorrie concludes that the Court of
Federal Claims did not have jurisdiction to restore the
contract. In other words, Harbert-Gorrie contends that
even if the Army’s decision to follow the GAO recommen-
dation was arbitrary and capricious, the only injunctive
remedy that the Court of Federal Claims could have
ordered was the inclusion of Turner in the re-solicitation
for the hospital contract.
While Harbert-Gorrie frames this challenge as a ju-
risdictional argument, it is actually a challenge of the
scope of the Court of Federal Claims’ equitable powers.
These concepts are distinct. The Tucker Act, as amended
by the Administrative Dispute Resolution Act of 1996,
provides 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 the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or
a proposed procurement.” 28 U.S.C. § 1491(b)(1). The
Tucker Act also explicitly empowers the court to “award
any relief that the court considers proper, including
declaratory and injunctive relief . . . .” Id. § 1491(b)(2)
(emphasis added). Thus, once jurisdiction attaches, the
Court of Federal Claims has broad equitable powers to
fashion an appropriate remedy. We give deference to the
TURNER CONSTRUCTION v. US 20
Court of Federal Claims’ decision to grant or deny injunc-
tive relief, only disturbing its decision if it abused its
discretion. PGBA, LLC v. United States, 389 F.3d 1219,
1223 (Fed. Cir. 2004).
Injunctive relief is appropriate if it “enjoin[s] the ille-
gal action and return[s] the contract award process to the
status quo ante.” Parcel 49C Ltd. P’ship v. United States,
31 F.3d 1147, 1153 (Fed. Cir. 1994). In this case, the
Army had already determined that Turner represented
the best value offer and lawfully awarded it the contract.
The Army then acted arbitrarily and capriciously by
following the GAO’s irrational recommendation to over-
turn that award and re-procure the contract. The Court
of Federal Claims fashioned a remedy that restored the
parties to their positions before the Army’s unlawful
action. This remedy included enjoining the re-
procurement of the contract and ordering that Turner’s
contract be reinstated. The Army did not challenge the
Court of Federal Claims’ ability to order reinstatement as
a remedy. Rather, in implementing the Court of Federal
Claims’ order, the Army examined the circumstances and
independently concluded that reinstatement was in fact
advantageous to the Army. See 48 C.F.R. § 49.102(d).
The fact that the Army has not objected to the scope of the
trial court’s injunction reinstating the contract is signifi-
cant, as the government is the only party with standing to
object to that relief. Harbert-Gorrie participated in a
procurement that has now been held to be lawful, and it
has pointed to no legal theory that would give it a right to
a second procurement. To the extent that the trial court’s
order to reinstate Turner’s contract is subject to challenge
as being beyond the proper scope of the remedy in a bid
protest case, that is a matter that could have been raised
by the party being enjoined, but not by a third party
whose rights are not affected by the reinstatement order.
21 TURNER CONSTRUCTION v. US
Accordingly, we do not disturb the remedy of reinstate-
ment awarded by the Court of Federal Claims.
CONCLUSION
The judgment of the Court of Federal Claims is af-
firmed.
AFFIRMED