Beechcraft Defense Company, Llc v. United States

In the United States Court of Federal Claims
BID PROTEST
No. 13-202C
(Filed Under Seal: April 25, 2013)
(Reissued for Publication: May 10, 2013)*
TO BE PUBLISHED
)
BEECHCRAFT DEFENSE )
COMPANY, LLC, )
)
Plaintiff, )
)
Post-Award Bid Protest; Override of
v. ) the CICA Automatic Stay; 31 U.S.C.
)
§ 3553(d); Acquisition of Light Air
THE UNITED STATES, )
Support Aircraft for the Afghan Air
)
Defendant, ) Force.
)
and )
)
SIERRA NEVADA CORPORATION, )
)
Defendant-Intervenor. )
)

James J. McCullough, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington,
D.C., for plaintiff. Jerald S. Howe, Joseph J. LoBue, Michael J. Anstett, Aaron T. Tucker,
Fried, Frank, Harris, Shriver & Jacobson LLP, Deneen J. Melander, Robbins, Russell,
Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C., of counsel.

J. Hunter Bennett, Trial Attorney, Kirk Manhardt, Assistant Director, Jeanne E.
Davidson, Director, Commercial Litigation Branch, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for
defendant.

Todd Miller, Holland & Hart LLP, Colorado Springs, Co., for defendant-intervenor.

*
This Opinion and Order was originally filed under seal on April 25, 2013 (docket entry 43)
pursuant to the protective order entered on March 22, 2013 (docket entry 22). The parties
were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted under the terms of the protective order. The parties
filed a joint status report on May 9, 2013 (docket entry 45). The Court has reviewed the
parties’ proposed redactions and concluded that, with certain exceptions, they are
appropriate. Accordingly, the Court is reissuing its Opinion and Order dated April 25, 2013
with redactions indicated by three consecutive asterisks within brackets ([***]).
 OPINION AND ORDER

GEORGE W. MILLER, Judge

On February 27, 2013, plaintiff Beechcraft Defense Company, LLC (“Beechcraft”)
filed a bid protest with the Government Accountability Office (“GAO”), in which plaintiff
asserts that the Department of the Air Force (the “Air Force”) improperly awarded a contract
for certain aircraft to Sierra Nevada Corporation (“SNC”). Pursuant to the Competition in
Contracting Act (“CICA”), 31 U.S.C. § 3553(d)(3), the Air Force instructed SNC to stay
performance while Beechcraft’s GAO protest is litigated. The Air Force then decided to
override the automatic stay and instructed SNC to resume performance. On March 20, 2013,
plaintiff filed a bid protest complaint (docket entry 1) challenging the Air Force’s override
decision as arbitrary, capricious, and an abuse of discretion.

I. Facts

A. The Initial Solicitation

The procurement at issue in this case is for the acquisition of light air support
(“LAS”) aircraft to be provided to the Afghan Air Force (“AAF”). Compl. ¶ 11. As part of
its 2014 withdrawal from Afghanistan, the United States has committed to provide LAS
aircraft and associated training for the AAF. The LAS aircraft will be used both for training
and air-to-ground attack support. AR Tab 5, at 1298. Aerial security enhances ground troop
freedom of movement and provides additional reconnaissance and extended attack reach. Id.
at 1299. The Combined Security Transition Command – Afghanistan originally planned for
delivery of LAS aircraft by September 2011. Id. The United States is now committed to
provide Afghanistan with LAS aircraft beginning in the summer of 2014. Id.

The Air Force issued its initial solicitation, No. FA8637-10-R-6000 (the “Initial
Solicitation”), on October 29, 2010. Sierra Nevada Corp. v. United States, 107 Fed. Cl. 735,
739 (2012). At that time, delivery was to begin in April 2013. AR Tab 5, at 1299. The Air
Force received proposals in response to the Initial Solicitation from two offerors, Beechcraft
(which was known at that time as “Hawker Beechcraft Defense Company, LLC” and has
since changed its name) and SNC. Sierra Nevada Corp., 107 Fed. Cl. at 739. On
November 1, 2011, the contracting officer issued a decision excluding Beechcraft from the
competitive range. Id.

Beechcraft filed a bid protest with the GAO, No. B-406170, on November 21, 2011,
challenging the Air Force’s decision to exclude Beechcraft from the competitive range. Id.
On December 22, 2011, the GAO dismissed Beechcraft’s protest on timeliness grounds. Id.
The same day, the Air Force awarded contract number FA8637-12-D-6001 (the “Initial
Contract”) to SNC. Id.; see also Def.’s Mot. to Dismiss at 2, Hawker Beechcraft Def. Co. v.
United States, No. 11-897C (Fed. Cl. Mar. 13, 2012).

On December 27, 2011, Beechcraft filed a bid protest action in this court, Case
No. 11-897C. 107 Fed. Cl. at 739. On January 4, 2012, the Air Force voluntarily issued a
stop-work order to SNC on the Initial Contract. Id. at 740. Then, on February 28, 2012, the

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United States filed a notice of intent to take corrective action including setting aside the
award of the Initial Contract to SNC, reinstating Beechcraft to the competitive range, and
accepting new proposals. Id. at 742. On March 2, 2012, the Air Force notified SNC that it
was terminating the Initial Contract. Id. The court dismissed Case No. 11-897C on May 7,
2012. Id.

B. Corrective Action and the Amended Solicitation

On April 17, 2012, the Air Force met with Beechcraft and SNC to discuss a draft
amendment to the Initial Solicitation to request new proposals. Id. at 745. The Air Force
then issued an amendment to the Initial Solicitation on May 4, 2012. Id. at 746. The
amended solicitation requires delivery of two aircraft every month beginning July 31, 2014
and continuing through April 2015. AR Tab 1, at 762. On June 12, 2012, SNC filed a bid
protest action in this court challenging the Air Force’s corrective action and seeking, in
effect, to reinstate the Initial Contract. 107 Fed. Cl. at 748. Judge Christine Miller ultimately
found that the corrective action was not unreasonable, allowing source selection to proceed
on the amended solicitation. Id. at 760–61.

On February 27, 2013, the Air Force once again awarded the contract (the “LAS
Contract”) to SNC. AR Tab 2, at 1072. Plaintiff filed a bid protest with the GAO on
March 8, 2013. AR Tab 2.1 Pursuant to 31 U.S.C. § 3553(d)(3)(A) and FAR 33.104(c)(1),
the Air Force directed SNC to stop work on the LAS Contract on March 11, 2013. AR
Tab 3. Then, on March 15, 2013, the Air Force notified the GAO and the parties of its
decision to override the stay of performance and cancel the stop-work order. AR Tab 12.

The Air Force prepared a Determination and Findings (“D&F”) memorandum dated
March 15, 2013 in support of its override decision. See generally AR Tab 5. The D&F
states that the override is “in the best interests of the United States” and that “unusual2 and
compelling circumstances that significantly affect the national security interests of the United
States and its coalition partners will not permit waiting for a GAO decision.” Id. at 1304.
The D&F explains that the Air Force cannot wait for the GAO’s resolution of Beechcraft’s
protest because [***].

The D&F describes the LAS aircraft as “indispensable to the operational and strategic
success of the [Afghan National Security Forces (“ANSF”)].” Id. at 1299. Air-to-ground
support protects the lives of Afghan ground forces and decreases the risk of poor morale and
increased desertion rates. Id. Thus, the LAS aircraft is a “key enabler for the ability of the
ANSF to maintain security” without the assistance of U.S. troops in Afghanistan. Id.

1
Plaintiff filed a supplemental protest with the GAO on March 14, 2013. AR Tab 4.
2
The D&F uses the phrase “unusual and compelling circumstances” instead of “urgent and
compelling circumstances.” Defendant suggests that the language may have originated from
10 U.S.C. § 2304(c)(2), which permits sole source procurements upon a showing of “unusual
and compelling circumstances.” Def.’s Mot. 20 n.2. Whatever the source of the language, it
does not appear to affect the substance of the analysis in the D&F.

3
 According to the D&F, the LAS aircraft are already “severely late to need.” Id.
Under the Initial Contract, delivery was scheduled to begin in April 2013. Id. The D&F
states that the lengthy history of this procurement, including prior litigation and the Air
Force’s corrective action, has extended the procurement schedule “to its stretching point.”
Id. at 1302. The D&F concludes that the costs of delaying performance—[***]—exceed the
monetary costs that would result if the GAO were to sustain the protest and the Air Force
terminated the contract. Id. at 1301.

Plaintiff filed this protest on March 20, 2013. Plaintiff also filed a motion for
emergency declaratory relief, a temporary restraining order, and/or a preliminary injunction
(docket entry 7, Mar. 20, 2013). After an initial telephonic status conference with the Court
on March 21, 2013, defendant produced the D&F to plaintiff. On March 27, 2013, defendant
produced the administrative record (“AR”). Plaintiff filed its motion for judgment on the AR
(“Pl.’s Mot.”) on April 3, 2013 (docket entry 32). Defendant filed its cross-motion (“Def.’s
Mot.”) on April 10, 2013 (docket entry 37), as did defendant-intervenor (docket entry 40).

Plaintiff also filed a motion to supplement the AR (docket entry 31, Apr. 3, 2013)
with the declaration of Beechcraft’s LAS Program Manager, Chris Knaak (“Knaak Decl.”).
Defendant responded (docket entry 36, Apr. 10, 2013) that, “rather than opposing
supplementation,” it would provide two declarations from Brigadier General Steven Shepro
(“Shepro Decl.”) and Colonel James G. Fulton (“Fulton Decl.”). During oral argument
defendant moved to supplement the AR with the declarations of General Shepro and Colonel
Fulton. Defendant-intervenor filed an opposition (docket entry 38, Apr. 10, 2013) to
plaintiff’s motion to supplement the AR and also moved to supplement the AR (docket entry
39, Apr. 10, 2013) with a declaration from Silvanus Taco Gilbert, Vice President of
Integrated Tactical Solutions at SNC (“Gilbert Decl.”). On April 16, 2013, plaintiff filed a
reply brief (docket entry 42) in support of its motion to supplement the AR and in opposition
to defendant-intervenor’s motion to supplement the AR.

The Court heard oral argument on pending motions on April 19, 2013 and announced
its rulings from the bench. This Opinion explains the Court’s reasoning.

II. Analysis

The court has jurisdiction over this bid protest action—including the authority to
grant declaratory or injunctive relief—under the Tucker Act, as amended by the
Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874
(1996). 28 U.S.C. § 1491(b) (granting the Court of Federal Claims jurisdiction to “render
judgment on an action by an interested party objecting to a solicitation by a Federal agency
for bids or proposals for a proposed contract or to a proposed award . . . or any alleged
violation of a statute or regulation in connection with a procurement or a proposed
procurement”); see also RAMCOR Servs. Group, Inc. v. United States, 185 F.3d 1286, 1291
(Fed. Cir. 1999) (determining that the Court of Federal Claims may review the merits of an
override independent of any consideration of the merits of the underlying contract award).

“[T]he task of the reviewing court is to apply the appropriate APA standard of review
to the agency decision based on the record the agency presents to the reviewing court.”

4
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (emphasis in
original) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 726, 743–44 (1985)). The
Federal Circuit has therefore held that the administrative record should only be supplemented
in “cases in which ‘the omission of extra-record evidence precludes effective judicial
review.’” Id. (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398
F.3d 1342 (Fed. Cir. 2005)).

“[A] Motion for Judgment on the Administrative Record, pursuant to [Rule] 52.1 [of
the Rules of the Court of Federal Claims (“RCFC”)], is similar but not identical to a Motion
for Summary Judgment, pursuant to RCFC 56.” Info. Scis. Corp. v. United States, 73 Fed.
Cl. 70, 97–98 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir.
2005)). Summary judgment is appropriate where there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. See RCFC 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). When considering a motion for judgment
on the administrative record, however, the court must weigh the evidence before it; RCFC
52.1 is “designed to provide for a trial on a paper record, allowing fact-finding by the trial
court.” Bannum, 404 F.3d at 1356.

In bid protest cases, the court only sets aside the agency’s decision if it was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Supreme Foodservice GMBH v. United States, No. 13-1, slip op. at 10 (Fed. Cl. Mar. 4,
2013); see 28 U.S.C. § 1491(b)(4); 5 U.S.C. § 706. An agency’s decision is arbitrary and
capricious if it (1) relied on factors which Congress did not intend it to consider, (2) entirely
failed to consider an important aspect of the problem, (3) offered an explanation for its
decision that runs counter to the evidence before the agency, or (4) was so implausible that it
could not be ascribed to a difference in view or the product of agency expertise. Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

CICA provides for an automatic stay of contract performance while a bid protest is
pending before the GAO. 31 U.S.C. § 3553(d)(3). CICA also authorizes an agency to
override the automatic stay and proceed with contract performance upon a written finding
that either “performance of the contract is in the best interests of the United States” or
“urgent and compelling circumstances that significantly affect interests of the United States
will not permit waiting for the decision of the Comptroller General concerning the protest.”
31 U.S.C. § 3553(d)(3)(C).

When reviewing agency decisions to override a CICA stay of performance, courts
consider: (1) “whether significant adverse consequences will necessarily occur if the stay is
not overridden”; (2) “whether reasonable alternatives to the override exist that would
adequately address the circumstances presented”; (3) “how the potential cost of proceeding
with the override, including the costs associated with the potential that the GAO might
sustain the protest, compare to the benefits associated with the approach being considered for
addressing the agency’s needs”; and (4) “the impact of the override on competition and
integrity of the procurement system.” Reilly’s Wholesale Produce v. United States, 73 Fed.
Cl. 705, 711 (2006); see also Supreme Foodservice, slip op. at 14–16; e-Management
Consultants, Inc. v. United States, 84 Fed. Cl. 1, 4 (2008); Superior Helicopter LLC v. United
States, 78 Fed. Cl. 181, 189 (2007); cf. PMTech, Inc. v. United States, 95 Fed. Cl. 330, 345

5
(2010) (cautioning against “over-zealously appl[ying] the Reilly’s Wholesale factors to a
CICA stay override decision, [as] such a review could exceed the narrow, highly deferential,
‘no rational basis’ standard of review,” and noting that “[t]he court’s focus should be on
whether the CICA stay override decision was rational and whether the agency considered
relevant factors, not on whether the agency conformed its analysis to [the specific factors set
forth in Reilly’s Wholesale].”).

A. Significant Adverse Consequences

The D&F justifies the Air Force’s override decision by describing several adverse
consequences that it asserts will occur if the stay is not overridden, including [***].
Additionally, further delay resulting from waiting for the GAO’s decision would require a
continued U.S. presence to provide air-to-ground capability, which “could easily mean the
loss of military and civilian lives.” Id. at 1300–01.

Plaintiff argues that these consequences need not occur due to alternatives to the
override that would allow the Air Force to avoid the consequences cited in the D&F. Pl.’s
Mot. 32. As discussed below in section II.B, however, the Air Force reasonably rejected
plaintiff’s suggested alternatives to the override.

Plaintiff also argues that, because the United States will continue to have some role in
Afghanistan beyond 2014, there is no need for the AAF to have full air-to-ground capability.
Id. at 32–33. Plaintiff cites statements from President Obama’s State of the Union Address
that the United States will continue to train and equip Afghan forces “[b]eyond 2014.” Id.
at 32 (citing AR Tab 14, at 1356). Plaintiff also quotes a Department of Defense report
stating that the AAF’s “long-term development strategy” is to equip itself to “support the
basic needs” of the Afghanistan Government “by 2017.” Id. at 32 (citing Pl.’s Mot. Ex. 13).
Plaintiff contends that these statements demonstrate that the consequences the Air Force
describes in the D&F “seem overstated.” Id. at 33. Plaintiff appears to argue that the AAF
will inevitably have other capability gaps after 2014, whether or not the AAF has air-to-
ground capability, and therefore its need for air-to-ground capability is not as significant as
the Air Force contends.

The Air Force’s analysis of potential adverse consequences was not arbitrary or
capricious. Other ongoing gaps in the capabilities of the AAF do not show that adverse
consequences will not result from the lack of air-to-ground capability. In a matter of this
nature, the Court defers to the expertise and judgment of the Air Force’s analysis of military
capabilities. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“We ‘give
great deference to the professional judgment of military authorities concerning the relative
importance of a particular military interest.’” (quoting Goldman v. Weinberger, 475 U.S.
503, 507 (1986))).

B. Reasonable Alternatives

The D&F concludes that a continued U.S. presence in Afghanistan is the only
alternative source of the required aircraft and associated systems for Afghanistan. AR Tab 5,
at 1300–01. According to the D&F, a continued U.S. presence “is not feasible in light of

6
[***].” Id. at 1301. Plaintiff argues, however, that the Air Force failed to consider the
possibility that the delivery schedule could be condensed as well as improperly rejected the
use of Mi-35 or Mi-17 helicopters. Pl.’s Mot. 11–21.

1. Condensed Schedule

Plaintiff challenges the D&F’s statement that “[a]ny delay in contract performance is
likely to result in no less than a day-for-day delay in delivery of aircraft.” AR Tab 5, at 1299.
Plaintiff asserts that the Air Force failed to consider several steps it could take to expedite
delivery. First, plaintiff argues that the LAS Contract provides the Air Force with two
periods of time related to [***] that the Air Force can complete in significantly less time.
Pl.’s Mot. 13. [***]. According to Beechcraft’s LAS Program Manager, the [***] can be
completed in [***] days. Knaak Decl. ¶ 12.3 Thus, plaintiff characterizes the additional
[***] days as a “built-in cushion.” Pl.’s Mot. 13. [***].

Next, plaintiff argues that SNC can perform the contract more rapidly than the current
delivery schedule. Id. at 16. Plaintiff claims that, if it had been awarded the contract, it
could have accelerated its production schedule. Id. at 17. Additionally, plaintiff notes that
SNC’s subcontractor, Embraer, has previously produced and delivered aircraft on schedules
shorter than the eighteen months provided in the Solicitation and the LAS Contract. Id.
at 17–18 (citing Pl.’s Mot. Exs. 4–11). Finally, plaintiff cites to SNC’s public statements that
it was “exploring ways to mitigate delays” in response to the stop-work order it received in
January 2012. Id. (citing Pl.’s Mot. Ex. 12).

The court’s review is limited to examining whether the agency’s decision is supported
by a rational basis. PMTech, 95 Fed. Cl. at 341. The court defers to the agency as to its
reasonable assessments concerning scheduling risks. See Tech Sys., Inc. v. United States, 98
Fed. Cl. 228, 258 (2011). Where the agency has considered and reasonably rejected an
alternative, the court will not analyze whether the agency considered every available avenue
a plaintiff can imagine for achieving that alternative. Accordingly, the Air Force need not

3
Plaintiff moved to supplement the AR with Mr. Knaak’s declaration. Defendant does not
oppose plaintiff’s motion, but defendant-intervenor does. Mr. Knaak’s declaration does not
seek to re-examine the agency’s fact finding or inferences, but rather seeks to add evidence
regarding other allegedly reasonable alternatives. See Totolo/King v. United States, 87 Fed.
Cl. 680, 693 n.7 (2009) (allowing supplementation of the AR after noting that “[a] discrete
difference exists between adding evidence to the record to aid in the reexamination of the
contracting officer’s decision and submitting an evidentiary filing that points out to the court
whether the contracting officer did or did not do something,” because if plaintiff “can
substantiate that the contracting officer’s review was insufficient or deficient, [plaintiff]
would be supplying the required factual predicate for a finding that the contracting officer
acted arbitrarily or capriciously”). Here, Mr. Knaak’s declaration is necessary for effective
judicial review of the reasonableness of alternatives the agency did not pursue or consider.
Plaintiff’s motion to supplement the AR with Mr. Knaak’s declaration is therefore
GRANTED.

7
show that it found each of plaintiff’s proposals to be impossible, but only that it rationally
considered whether a condensed schedule was possible.

The Air Force’s rationale for rejecting efforts to compress the schedule is eminently
reasonable. The D&F explains that delivery is already overdue. AR Tab 5, at 1299 (“The
award date of 27 February 2013 means that delivery to Afghanistan has already been
delayed, with the first two aircraft now scheduled 15 months later than the initial date of
April 2013 . . . .”); id. (“This requirement is already severely late to need.”). Thus, the Air
Force is already operating under a compressed schedule. Id. at 1299 (“The time required for
the contractor to build, certify, test, ferry, and deliver aircraft is already short.”).
Accordingly, the D&F concludes based on schedule constraints that any delay in
performance will likely result in delayed delivery. Id. (“Any delay in contract performance is
likely to result in no less than a day-for-day delay in delivery of aircraft.”); id. at 1299–30
(“Due to short contract schedule and disruption associated with delays, if the Air Force stays
contract performance, by even as little as 30 days, the contractor’s need to stop subcontractor
performance and deliveries will delay delivery of aircraft and training at least 30 days and
possibly longer.”). [***]. The D&F shows that the Air Force clearly did not, as plaintiff
asserts, “entirely fail to consider” a compressed schedule.

Moreover, the Air Force is only required to consider reasonable alternatives to the
override. The Knaak declaration fails to establish that any of plaintiff’s proffered methods
for condensing the schedule are in fact reasonable. In general, Mr. Knaak’s declaration
consists of conclusory statements that the schedule can be compressed [***]. See Knaak
Decl. ¶¶ 7 (stating that Beechcraft could remove [***] time), 12 (“The [***] is arbitrary,
unnecessary, and can be reduced significantly.”). Not surprisingly, Colonel Fulton4 disagrees
with Mr. Knaak’s assertions. Fulton Decl. ¶¶ 9–17, 20–24. Most of the time plaintiff
proposes removing from the schedule is attributable to [***]. Id. ¶ 24. There appears to be
no reason why Mr. Knaak’s understanding of the time needed for [***] would be at all
superior to Colonel Fulton’s knowledge. Furthermore, as Colonel Fulton explains,
“performance is not just a function of aircraft delivery.” Id. ¶ 4. Therefore, proposals to
condense one portion of the schedule do not necessarily have any effect on the overall time
for performance.

Additionally, the D&F explains that this is an exceptional case because it is not only
the actual delays, but also [***].

4
Defendant submitted a declaration of Colonel James G. Fulton in which Colonel Fulton
explains why the delivery schedule could not be condensed and responds to the claims of Mr.
Knaak. Defendant did not originally move to supplement the AR with Colonel Fulton’s
declaration, but made such a motion during oral argument. Colonel Fulton’s declaration
explains why the Air Force did not pursue or consider the alternatives plaintiff and Mr.
Knaak propose. Accordingly, like Mr. Knaak’s declaration, Colonel Fulton’s declaration is
necessary for effective judicial review. Defendant’s motion to supplement the AR with
Colonel Fulton’s declaration is therefore GRANTED.

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 2. Mi-35 or Mi-17 Helicopters

The D&F analyzes the viability of using the six Mi-35 helicopters currently in use by
the AAF as an alternative to the LAS aircraft:

[***]. This is not a viable option. [***]. Based on existing military and
political considerations at the national strategic level, provision of LAS
aircraft through this contract is the only way, consistent with our
commitments, that the U.S. is able to provide to Afghanistan the light attack
and surveillance capability it so desperately requires.

AR Tab 5, at 1301. Plaintiff argues that the record contradicts the Air Force’s conclusion
that the AAF could not use Mi-35 helicopters as an air-to-ground alternative to LAS aircraft.
Pl.’s Mot. 19–21. Plaintiff notes that five of the AAF’s six Mi-35s will remain in service
until at least late 2015. Id. at 20. Plaintiff claims that this would be enough time to account
for any delay in performance of the LAS Contract. Id.

The primary flaw in plaintiff’s argument is its assumption that six helicopters are a
reasonable alternative to twenty planes. Plaintiff incorrectly attributes to the D&F the
conclusion “that the Mi-35s can adequately perform the mission.” See id. The Air Force’s
reference to the Mi-35 helicopters in the D&F does not imply that the helicopters could
effectively replace the LAS aircraft. See AR Tab 5, at 1300–01. Rather, the D&F addresses
whether the Mi-35s ([***]) could be kept in service and rejects this as “not a viable option.”
Id. ([***]). [***]. In context, it appears that the purpose of the discussion of the Mi-35s in
the D&F is to show that without the LAS aircraft, [***]. Accordingly, the Air Force
reasonably concluded that use of the Mi-35 helicopters instead of the LAS aircraft is not a
reasonable alternative to the override.

Plaintiff also argues that the D&F ignores the option of converting Mi-17s into attack
helicopters. Pl.’s Mot. 20. Brigadier General Steven Shepro5—the Commanding General,
NATO Air Training Command Afghanistan and Commander, 438th Expeditionary Wing,
Kabul, Afghanistan—explains that the Mi-17s are an even less viable alternative to the LAS
aircraft. First, Mi-17s do not have forward firing capability. Shepro Decl. ¶ 11. Second,
General Shepro explains that even when the Mi-17s are outfitted with forward firing
capability, they fail to satisfy the AAF’s air-to-ground support needs. Id. ¶¶ 12–13. The Mi-
17 helicopters are therefore not a reasonable alternative to the LAS aircraft.

C. Costs Versus Benefits of the Override

The D&F demonstrates that the Air Force properly considered the potential costs as
compared with the benefits of proceeding with the override. Paragraph six of the D&F
5
Defendant moved during oral argument to supplement the AR with the declaration of
Brigadier General Steven Shepro which explains the deficiencies of the Mi-35 and Mi-17
helicopters. General Shepro’s declaration is necessary for judicial review of the reasons the
Air Force did not consider the Mi-17s to be a reasonable alternative. Defendant’s motion to
supplement the AR with General Shepro’s declaration is therefore GRANTED.

9
calculates the estimated costs of termination if the GAO sustains the protest and the contract
is terminated one hundred days after award. AR Tab 5, at 1301 ([***]). Paragraph seven
explains that the potential costs of not proceeding with the override include [***]. Weighing
the costs of not proceeding with the override, the D&F concludes that “[t]he ‘cost’ of delay is
more than a calculation of dollars and cents. In this case, further delay with resulting
capability gaps could easily mean the loss of military and civilian lives.” Id. Plaintiff does
not challenge the Air Force’s comparison of termination costs to the costs of not proceeding
with the override.

D. Integrity of the Procurement System

In the D&F, the Air Force acknowledges the importance of the CICA stay in
protecting the integrity of the procurement system, but the D&F states that this is “an
extraordinary case.” AR Tab 5, at 1302. The Air Force concludes that, due to the already-
tight schedule and the significant effects of this procurement on national security interests,
the facts of this case justify the unusual measure of overriding the CICA stay. Id. Plaintiff
disagrees and argues that the Air Force (1) failed to account for the flaws in the history of the
procurement, (2) improperly considered the merits of plaintiff’s GAO protest, and (3) used
the override as a litigation tactic in support of the Air Force’s position before the GAO. Pl.’s
Mot. 22.

Plaintiff asserts that the Air Force was required to consider the flawed history of this
procurement. Pl.’s Mot. 23. As plaintiff notes, an Air Force Commander Directed
Investigation previously found that the Initial Contract procurement was plagued by “issues
with documentation of the procurement, inconsistencies in evaluation of the offerors’
proposals, and bias exhibited in favor of SNC.” 107 Fed. Cl. at 743. Plaintiff cites the Air
Force’s failure to notify plaintiff of its decisions to exclude plaintiff from consideration and
to award the Initial Contract to SNC and the Air Force’s alleged failure to include all relevant
material in the administrative record during plaintiff’s first protest action in this court. Pl.’s
Mot. 23–24. While selection and award of the Initial Contract was flawed, the Air Force
investigated the initial procurement and responded to the flaws with corrective action,
including a new solicitation and source selection conducted by an entirely new source
selection evaluation team, contracting officer, source selection advisory council, and source
selection authority. AR Tab 5, at 1297. Plaintiff provides no support for its conclusion that
the Air Force was required to consider problems with a past iteration of this procurement
when considering whether to override the stay.

Plaintiff also argues that the Air Force, in deciding to override the CICA stay,
improperly considered its chances of prevailing in the GAO protest. Pl.’s Mot. 25 (citing e-
Management, 84 Fed. Cl. at 9). The Air Force’s “preliminary assessment” was that the
“protest grounds have not revealed inadequacies in the source selection process that would
give reason to believe that the award decision was not adequately supported.” AR Tab 5,
at 1303. Such de minimis reference to the merits of the underlying protest is not fatal in this
case, unlike the more significant consideration of the merits involved in e-Management. In
that case, the agency “articulated its optimistic view of the likely outcome of the protest to
discount the costs of the override.” 84 Fed. Cl. at 9. Here, the D&F considered that the costs
of the override are purely financial, but the costs of delay include strained international

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relations and possible loss of life—a comparison made on the assumption that the GAO
would sustain the protest and the Air Force would terminate the contract with SNC. AR
Tab 5, at 1303 (“That risk is accepted primarily because of the paramount non-monetary
national security interests outlined in the above findings, but it is also recognized that failure
to provide this capability to Afghanistan as promised will result in non-monetary costs that
substantially outweigh projected termination liability.”).

Finally, plaintiff argues that the Air Force used its override decision as a litigation
tactic to defend against plaintiff’s GAO protest. Pl.’s Mot. 27–31. The only evidence
plaintiff cites to support this argument is a single slide taken from an Air Force briefing
presentation entitled “LAS Protest and Override.” AR Tab 17, at 1369. The slide lists “pros
and cons” of the override. Id. Plaintiff objects to two bullet points found in the “pro”
column. Id. However, neither of these “pros,” nor any other indication that the Air Force
was using the override as a litigation tactic, appears in the D&F. Instead, the D&F sets forth
a thorough and reasonable explanation for the override decision.

CONCLUSION

The Air Force properly considered the relevant factors and reasonably determined
that the override was supported by urgent and compelling circumstances and was in the best
interests of the United States. Accordingly, plaintiff’s motion for judgment on the
administrative record (docket entry 32) is DENIED, defendant’s motion for judgment on the
administrative record (docket entry 37) is GRANTED, and defendant-intervenor’s motion
for judgment on the administrative record (docket entry 40) is GRANTED. Plaintiff’s
motion to supplement the AR with Mr. Knaak’s declaration (docket entry 31) is GRANTED.
Defendant’s oral motion to supplement the AR with the declarations of Colonel Fulton and
Brigadier General Shepro is GRANTED. Defendant-intervenor moved to supplement the
AR with a declaration from Silvanus Taco Gilbert, Vice President of Integrated Tactical
Solutions at SNC (docket entry 39). The Gilbert declaration is not necessary for effective
judicial review. See Axiom, 564 F.3d at 1380. Defendant-intervenor’s motion to supplement
the AR with Mr. Gilbert’s declaration is accordingly DENIED. Plaintiff’s motion for
emergency declaratory or injunctive relief (docket entry 7) is also DENIED.

The Clerk shall enter judgment in favor of defendant and defendant-intervenor.

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 Some information contained herein may be considered protected information subject
to the protective order (docket entry 22, Mar. 22, 2013) entered in this action. This Opinion
and Order shall therefore be filed under seal. The parties shall review the Opinion and Order
to determine whether, in their view, any information should be redacted prior to publication
in accordance with the terms of the protective order. The Court ORDERS the parties to file
a joint status report by Thursday, May 9, 2013, identifying the information, if any, they
contend should be redacted, together with an explanation of the basis for each proposed
redaction.

IT IS SO ORDERED.

s/ George W. Miller
GEORGE W. MILLER
Judge

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