Sagam Securite Senegal v. United States

Case: 21-2279 Document: 70 Page: 1 Filed: 10/12/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

SAGAM SECURITE SENEGAL,
Plaintiff-Appellee

v.

UNITED STATES,
Defendant-Appellant
______________________

2021-2279
______________________

Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01138-MMS, Senior Judge Margaret M.
Sweeney.
______________________

Decided: October 12, 2023
______________________

THOMAS ANDREW COULTER, Norton Rose Fulbright US
LLP, Washington, DC, argued for plaintiff-appellee.

WILLIAM PORTER RAYEL, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellant.
Also represented by BRIAN M. BOYNTON, PATRICIA M.
MCCARTHY, DOUGLAS K. MICKLE.
______________________
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2 SAGAM SECURITE SENEGAL v. US

Before PROST, CLEVENGER, and CUNNINGHAM, Circuit
Judges.
PROST, Circuit Judge.
In this bid protest action, the Department of State
(“State” or the “agency”) appeals a decision by the Court of
Federal Claims (“Claims Court”) holding that State’s deci-
sion to cancel and resolicit a procurement contract lacked
a rational basis. After making an award to Torres-SAS Se-
curity LLC Joint Venture (“Torres”), State discovered that
it had violated the Procurement Integrity Act (“PIA”) dur-
ing its initial evaluation of proposals by sharing infor-
mation from the proposal of SAGAM Securite Senegal
(“SAGAM”) with competitor Torres. State therefore deter-
mined cancellation and resolicitation was warranted.
SAGAM protested that decision. The Claims Court
granted SAGAM’s motion for judgment on the administra-
tive record and entered a permanent injunction. SAGAM
Securite Senegal v. United States, 154 Fed. Cl. 653 (2021)
(“Decision”). Based on the unusual facts at hand, we af-
firm.
BACKGROUND
I
On April 19, 2019, State issued a solicitation seeking
local guard services for the U.S. embassy in Dakar, Sene-
gal. The solicitation anticipated one base year of perfor-
mance with the possibility of four additional one-year
option periods to be exercised at the sole discretion of the
government. The solicitation provided that State would
make an award to the responsible offeror with the “Lowest
Price Technically Acceptable.” J.A. 495. As part of their
proposals, the solicitation required offerors to explain
whether their “proposed wages and benefits comply with
host-country Government or other official wage and benefit
levels, such as union agreements, and common practices
that might not be mandated by local law.” J.A. 479–80.
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SAGAM SECURITE SENEGAL v. US 3

The agency would also evaluate whether the offeror’s pro-
posed employee compensation plan “is reasonable and re-
alistic for the work being performed.” J.A. 491.
The agency received proposals from three offerors:
SAGAM (the thirty-five-year incumbent provider of guard
services for the U.S. embassy in Dakar); Torres; and a third
offeror, SAKOM Services WI LLC (“SAKOM”). Decision,
154 Fed. Cl. at 659. The agency deemed none of the pro-
posals acceptable as submitted. Because the agency deter-
mined that only SAGAM and Torres could improve their
proposals through discussions, it eliminated SAKOM from
competition and established a competitive range with both
SAGAM and Torres. Id. On August 23, 2019, the agency
initiated round one of discussions and sent letters to both
SAGAM and Torres. SAGAM and Torres each submitted
revised proposals as part of these discussions. With these
revisions, the agency considered both SAGAM and Torres
to have submitted acceptable proposals. Id.
The procurement entered troubled waters during
round two of discussions. On December 3, 2019, State sent
discussion letters to both offerors asking each to elaborate
on certain proposal aspects and to provide a best and final
offer by December 13. Id. It is undisputed that the discus-
sion letter sent by the contracting officer to Torres included
information taken from charts and footnotes in SAGAM’s
proposal, including proprietary information. Id. In re-
sponse to the questions and information shared in the
agency’s second round of discussions, both offerors submit-
ted final, revised proposals. Id.
In early March 2020, State awarded the contract to
Torres as the lower priced, technically acceptable offeror.
Id.; J.A. 2161. The award prompted a protest by SAGAM
at the Government Accountability Office (“GAO”) arguing
that Torres proposed an “unreasonably low and unrealis-
tic” price and employee compensation plan. J.A. 2165.
State agreed to take corrective action (“initial corrective
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4 SAGAM SECURITE SENEGAL v. US

action”) to resolve SAGAM’s allegations and planned to re-
evaluate the offerors’ employee compensation plans, con-
duct discussions (if necessary), evaluate final proposal re-
visions, and make a new award decision. Decision, 154
Fed. Cl. at 659.
During the initial corrective action, the contracting of-
ficer recognized the agency had potentially violated the
PIA through its December 2019 discussion letters. The
contracting officer issued a memorandum explaining that
she “took information from SAGAM’s compensation plan to
request additional clarifications regarding [Torres’s] com-
pensation plan” during discussions, including sharing a
“proprietary benefit.” J.A. 2194. She explained that “the
record does not clearly demonstrate that Torres’ compen-
sation plan was acceptable prior to Round 2” and that after
Round 2 discussions, Torres revised its proposal to add “ref-
erences to several of the mandatory benefits to its compen-
sation plan for the first time.” J.A. 2194–95. The
contracting officer recognized the risk that “the disclosure
of SAGAM’s proposal information induced Torres to make
material price proposal changes.” J.A. 2195. Therefore,
she “concluded that there is an impact on the procure-
ment.” J.A. 2195. As the Claims Court explained, “[a]t the
conclusion of the [contracting officer’s] memorandum, a box
was checked to indicate that the agency’s Head of Contract-
ing Activity (‘HCA’) concurred with her assessment that a
procurement integrity violation had an impact on the pro-
curement, and further stated that ‘the contracting officer
must cancel the solicitation.’” Decision, 154 Fed. Cl. at 659.
The contracting officer concluded that because State “can-
not mitigate the PIA violation, therefore, we will need to
cancel and re-solicit the requirement.” J.A. 2219.
On December 2, 2020, State announced to both offerors
its intention to cancel the solicitation and issue a new so-
licitation (“corrective action”). J.A. 3012–13 (“Notice of So-
licitation Cancellation”). The notice advised:
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SAGAM SECURITE SENEGAL v. US 5

[T]he above referenced solicitation is being can-
celled following a determination by the Depart-
ment of State HCA that the Department violated
the Procurement Integrity Act and that the viola-
tion impacted the procurement. The Department
of State will be issuing a new solicitation in support
of U.S. mission Senegal in the near future.
Id. Both the letter to SAGAM and to Torres advised that
“[y]our company is welcome to submit a response to that
future solicitation.” Id.
II
On March 30, 2021, SAGAM filed a pre-award protest
at the Claims Court arguing that State’s decision to cancel
and subsequently issue a new solicitation was arbitrary
and capricious. 1 J.A. 3017–28. The parties filed cross-mo-
tions for judgment on the administrative record. On June
25, 2021, the Claims Court granted SAGAM’s cross-motion,
denied the government’s cross-motion, and entered a per-
manent injunction. Decision, 154 Fed. Cl. at 658.
First, the Claims Court concluded that SAGAM’s chal-
lenge to the corrective action was ripe. The court reasoned
that “State’s issuance of a new solicitation is part and par-
cel of its cancellation of the tainted solicitation,” so SAGAM
did not have to wait until issuance of a new solicitation to
lodge its protest. Id. at 662. Further, the court determined
that State forfeited a ripeness argument because the gov-
ernment argued “for the first time in its reply brief that
SAGAM’s challenge to the issuance of a new solicitation is
not ripe.” Id.
Second, the court found the contracting officer’s disclo-
sure of SAGAM’s proposal information violated the PIA.

1 SAGAM first filed a protest at GAO, which was dis-
missed as untimely filed. J.A. 2212.
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6 SAGAM SECURITE SENEGAL v. US

Id. at 663 (citing 41 U.S.C. § 2101(2), 2102(a); Federal Ac-
quisition Regulation (“FAR”) 3.104-3). The court reasoned
that SAGAM’s proposal information “related to the exigen-
cies of complying with local labor laws and labor agree-
ments in Senegal and set forth SAGAM’s understanding of
those local conditions,” which was “essential to SAGAM’s
plan for the compensation and benefits that would be pro-
vided to its guard force.” Id. The court held that the infor-
mation disclosed to Torres was “[c]ost or pricing data”
prohibited from disclosure under the PIA and additionally
held that the disclosure violated fundamental fairness pro-
visions of the FAR. Id. at 663–64 (citing FAR 1.102-2, FAR
1.602-2, and FAR 3.101-1).
Third, the court held that the agency’s cancellation and
resolicitation decision lacked a rational basis because it
“merely perpetuates the agency’s procurement error so
that Torres can continue to benefit from the [contracting
officer’s] unfairness to SAGAM and her violation of the
PIA.” Id. at 664. Beyond the fact that the FAR permits
cancellation, State had not shown “that the cancellation de-
cision was reasonable,” nor that its decision considered the
interests of SAGAM, the victim of the PIA violation. Id. at
666.
Fourth, because cancellation and resolicitation did “not
reasonably address the [contracting officer’s] inequitable
conduct,” the court concluded that disqualification of
Torres from competition was the only appropriate remedy.
Id. at 669. Although the court observed that “disqualifica-
tion may seem like a severe sanction,” it reasoned that “at
times it is the only remedy that can reasonably address a
PIA violation.” Id. at 670.
Finally, the court held SAGAM had established entitle-
ment to injunctive relief. It held (1) SAGAM had succeeded
on the merits, (2) SAGAM would suffer irreparable harm
without injunctive relief, (3) the balance of hardships fa-
vored SAGAM, including because “State is responsible for
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SAGAM SECURITE SENEGAL v. US 7

the hardships” State would face, and (4) it was in the public
interest to grant injunctive relief to preserve the integrity
of the procurement process. Id. at 671–673. In doing so,
the court rejected the government’s request for a remand.
Id. at 674. It entered an injunction that
directs State to restore this competition to its sta-
tus precancellation, enjoins State from cancelling
Solicitation No. 19AQMM18R0332 and from reso-
liciting the contract requirement, directs State to
disqualify Torres as the beneficiary of improperly
disclosed information taken from SAGAM’s pro-
posal, and directs State to proceed to award the
contract to the remaining offeror in the competitive
range if that offeror is determined to be responsi-
ble.
Id. at 675 (capitalization normalized).
The government appeals. 2 Though not a part of the
record, answers to questions posed at oral argument reflect
that following the Claims Court’s injunction, the agency
awarded the contract to SAGAM; SAGAM performed the
base year of the contract; the agency has exercised an op-
tion year; and the contract terminates in 2027. 3

2 Torres did not seek to intervene in the Claims
Court proceedings until after the court had entered judg-
ment and three weeks after the government filed a notice
of appeal. The Claims Court denied Torres’s motion to in-
tervene. SAGAM Securite Senegal v. United States, 156
Fed. Cl. 124 (2021). We similarly denied Torres’s motion
to intervene in this appellate proceeding because it had not
intervened at the Claims Court. Order (Nov. 1, 2021), ECF
No. 14.
3 Oral Arg. at 1:50–2:00, 50:48–52:10,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21
-2279_08072023.mp3.
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8 SAGAM SECURITE SENEGAL v. US

DISCUSSION
We review the Claims Court’s assessment of the
agency’s cancellation and resolicitation decision de novo,
evaluating the agency’s action under the Administrative
Procedure Act (“APA”) “arbitrary and capricious” standard.
See WellPoint Mil. Care Corp. v. United States, 953 F.3d
1373, 1377 (Fed. Cir. 2020). “Under that standard, an
agency action must be set aside if it is ‘arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). We review
the decision of the Claims Court to grant or deny injunctive
relief for an abuse of discretion. PGBA, LLC v. United
States, 389 F.3d 1219, 1223 (Fed. Cir. 2004). An abuse of
discretion is established if the court “made a clear error of
judgment in weighing the relevant factors or exercised its
discretion based on an error of law or clearly erroneous fact
finding.” Id. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
We first analyze whether the agency had a rational ba-
sis for its cancellation and resolicitation decision. Conclud-
ing that it was irrational, we next consider the appropriate
remedy, including an injunction or a remand to the agency.
We hold that given the unusual circumstances in this case,
the Claims Court did not abuse its discretion in issuing an
injunction.
I
We begin by reviewing the agency’s cancellation and
resolicitation decision. “[C]orrective action only requires a
rational basis for its implementation.” Dell Fed. Sys., L.P.
v. United States, 906 F.3d 982, 991 (Fed. Cir. 2018). Under
the “highly deferential” APA standard, the “rational basis
test asks ‘whether the contracting agency provided a coher-
ent and reasonable explanation of its exercise of discre-
tion.’” Id. at 992 (quoting Banknote Corp. of Am., Inc. v.
United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004)). We
accordingly inquire whether the agency had a rational
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SAGAM SECURITE SENEGAL v. US 9

basis for its corrective action decision and whether it rea-
sonably explained its exercise of discretion.
A
At the outset, we affirm the Claims Court’s conclusion
that the contracting officer’s disclosure of SAGAM’s pro-
posal information to Torres violated the PIA.
The PIA provides that “a present or former official of
the Federal Government” “shall not knowingly disclose
contractor bid or proposal information or source selection
information before the award of a Federal agency procure-
ment contract to which the information relates.” 41 U.S.C.
§ 2102(a). Contractor bid or proposal information refers to
information “submitted to a Federal agency as part of, or
in connection with, a bid or proposal to enter into a Federal
agency procurement contract, if that information previ-
ously has not been made available to the public or disclosed
publicly,” and includes cost or pricing data and “[i]ndirect
costs and direct labor rates.” Id. § 2101(2). “Cost or pricing
data” means “all facts that . . . a prudent buyer or seller
would reasonably expect to affect price negotiations signif-
icantly.” Id. § 3501(a)(1).
Here, the solicitation advised offerors that they would
be required to compensate employees pursuant to local la-
bor law and that “[t]he rates/prices in Section B shall in-
clude the applicable costs necessary to comply with local
labor laws.” J.A. 478 (Solicitation Section L.11.1.3). The
agency’s evaluation would “consider whether the employee
compensation plan proposed is reasonable and realistic for
the work being performed,” and “[f]ailure of the compensa-
tion plan to demonstrate that the fixed hourly rates contain
proposed wages, salaries, and other benefits that are in
compliance with local law, other union/labor agreements
and decrees, or are below the salaries of the incumbent
guard force may be sufficient cause for the Government to
reject the proposal.” J.A. 491 (Solicitation Section M.2.1.5).
Thus, the solicitation required offerors to not only know
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10 SAGAM SECURITE SENEGAL v. US

local labor laws but also to apply that knowledge to demon-
strate that their hourly rates and compensation plan were
in compliance with local law. J.A. 478.
Because the application of local law was an express as-
pect of the agency’s evaluation, each offeror’s efforts to as-
certain local law and structure its labor rates thereupon
constituted sensitive proposal information related to that
offeror’s strategy for pricing its proposal. As the Claims
Court reasoned: “The information conveyed by the [con-
tracting officer] to Torres was not simply a general refer-
ence to publicly available laws and labor agreements—
each of SAGAM’s citations to these laws and agreements
was linked to specific aspects of contract performance and
contract costs.” Decision, 154 Fed. Cl. at 663. The SAGAM
proposal information shared with Torres is readily charac-
terized as “cost or pricing data” within the meaning estab-
lished by the PIA. Therefore, disclosure of such
information implicates the PIA.
Our conclusion is consistent with the contracting of-
ficer’s own investigation. She expressed a concern that
“the disclosure of SAGAM’s proposal information induced
Torres to make material price proposal changes that could
have impacted the acceptability of its price proposal,” and
she found “that there is an impact on the procurement.”
J.A. 2195. State concluded that a PIA violation occurred.
J.A. 2196, 3012–14. In light of the agency’s own finding,
State’s litigation position—that the disclosure was not
problematic because the information disclosed constitutes
only public laws—is indeed puzzling. Reply Br. 19
(“[N]early all of the information from SAGAM’s proposal
that was disclosed to Torres was descriptions of Senegalese
statutes and public labor agreements.”); Appellant’s Br.
32–33 (arguing “SAGAM’s descriptions of public infor-
mation in its August proposal were not the kind of infor-
mation demanding extraordinary protection from
disclosure,” reflecting no “clear prejudice to SAGAM”). On
the contrary, as the Claims Court found, the information
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SAGAM SECURITE SENEGAL v. US 11

disclosed was “lifted directly” from footnotes to a detailed
chart in SAGAM’s proposal that used “citations to provi-
sions of laws and labor agreements to explain specific cost
categories in SAGAM’s proposal.” Decision, 154 Fed. Cl. at
663. The court noted that the agency never argued that
these explanatory footnotes had ever been disclosed pub-
licly. Id. at 663 n.6.
State’s argument is also belied by State’s own admis-
sion that the disclosure included SAGAM’s application of a
labor agreement. Reply Br. 20 n.3. We credit the contract-
ing officer and HCA’s contemporaneous findings over post-
hoc litigation arguments. See Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020)
(explaining that “[c]onsidering only contemporaneous ex-
planations for agency action” instills confidence that later
explanations are not mere convenient litigating positions).
We agree with the Claims Court that the contracting
officer’s disclosure of information taken from SAGAM’s
proposal constitutes a PIA violation that impacted the pro-
curement.
B
We next consider State’s response to its PIA violation.
Although the agency is not required to consider and explain
every potential remedy, it must provide “a reasonable cor-
rective action and adequately explain its reasoning for do-
ing so.” Dell Fed., 906 F.3d at 998. We conclude that
State’s decision to cancel and resolicit the contract (which
included Torres as a prospective bidder) lacks a rational
basis.
As an initial matter, we agree with the Claims Court
that cancellation and resolicitation must be considered to-
gether, since “State’s issuance of a new solicitation is part
and parcel of its cancellation of the tainted solicitation.”
Decision, 154 Fed. Cl. at 662. The agency has not chal-
lenged the Claims Court’s consideration of cancellation and
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12 SAGAM SECURITE SENEGAL v. US

resolicitation as a single agency decision. We see no reason
to consider the two actions separately; cancellation and
resolicitation were two components of a single agency deci-
sion announced in one breath. See J.A. 2219 (“[W]e will
need to cancel and re-solicit the requirement.”). For that
reason, although cancellation may have been a reasonable
initial remedy to extinguish the tainted procurement, it
cannot be divorced from the agency’s resolicitation.
The problem with the agency’s resolicitation is that it
does nothing to address the fact that Torres has errone-
ously received information on how to improve its proposal
that was taken directly from another offeror’s own efforts
to understand and apply local laws—and, yet, the agency
invited Torres to participate in a new solicitation. J.A.
3013. As the Claims Court explained, “any reasonable cor-
rective action was required to address, in some substantive
way, the fact that Torres now possesses competition-sensi-
tive information that it has no right to possess.” Decision,
154 Fed. Cl. at 667. A mere redo of the procurement cannot
erase the knowledge that Torres now has regarding how to
comply with solicitation requirements, nor does it remedy
SAGAM’s loss of its duly-earned competitive advantage.
While a new solicitation could be an appropriate rem-
edy with proper mitigation measures in place, the record is
devoid of any evidence that the agency considered how to
mitigate Torres’s knowledge and the harm to SAGAM in a
new procurement, as discussed more fully in Section II.B,
infra. On appeal, State focuses entirely on the fact that it
cancelled the contract, arguing that the cancellation “ra-
tionally resolved [the] defect in the 2019 procurement” be-
cause that tainted procurement no longer exists.
Appellant’s Br. 25. The agency expressly disavowed any
concern for a future procurement: “State’s corrective action
does not specifically address any defect in any future solic-
itation for the same requirement. This is appropriate be-
cause there is no future solicitation yet.” Appellant’s Br.
26.
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The agency’s position—that it need not address how a
new solicitation could fairly proceed—fails to “adequately
explain its reasoning” for its corrective action decision.
Dell Fed., 906 F.3d at 998. Because the agency made a
combined decision to cancel and resolicit the guard services
contract, it was required to provide an explanation that ad-
dressed not only cancellation, but resolicitation as well.
And, the agency has not shown that resolicitation is rea-
sonable. The record includes only the contracting officer’s
memorandum identifying the PIA violation and an email
from the contracting officer to the HCA stating the need to
cancel and resolicit the effort. The record contains no con-
temporaneous explanation of the corrective action by the
contracting officer explaining why the agency considered
resolicitation to be a suitable remedy or what mitigation
measures would safeguard the parties’ interests in a new
procurement. Providing no explanation at all discussing
both the harm caused by the PIA violation and the agency’s
solution to it fails to demonstrate a rational basis for the
decision and in the end frustrates the court’s review. We
therefore agree with the Claims Court’s conclusion that the
agency has not provided “any substantive argument as to
the reasonableness of the corrective action chosen.” Deci-
sion, 154 Fed. Cl. at 665.
In sum, we conclude that the agency’s decision lacked
a rational basis and is unsupported by the administrative
record. The agency’s corrective action is therefore arbi-
trary and capricious under the APA.
II
Second, we consider the practical next step: if the
agency’s corrective action lacked a rational basis, what is
the proper remedy?
The agency argues that the Claims Court should have
resolved the issue through either a remand to the agency
or a narrow, flexible injunction: “If State failed to ade-
quately justify why cancellation was an appropriate
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14 SAGAM SECURITE SENEGAL v. US

remedy for the PIA violation, then the trial court should
have remanded for further explanation or restored the sta-
tus quo ante by setting aside the cancellation while permit-
ting State to re-cancel for any rational reason.” Reply Br.
4–5. It stresses the discretion afforded to agencies and ar-
gues that the Claims Court erred by ruling that disqualify-
ing Torres was the only rational corrective action.
Appellant’s Br. 27. Further, it emphasizes that “courts
have often recognized that it is possible to reasonably mit-
igate the effect of [an earlier PIA violation]” and that
“[t]here are obvious and plausible mitigation efforts that
could be taken to reduce the impact of the disclosure of
SAGAM’s proposal information upon any future procure-
ment.” Id. at 23. The agency thus urges this court to find
the Claims Court’s injunction constituted an abuse of dis-
cretion by “improperly stepping into the shoes of the HCA
and the contracting officer to disqualify Torres and to
award a contract to SAGAM.” Id. at 24.
SAGAM seeks affirmance of the Claims Court’s deci-
sion and injunction because State “failed to take steps to
properly address the impact of the [PIA] violation and re-
store fairness to the procurement.” Appellee’s Br. 22. Ac-
cording to SAGAM, the Claims Court correctly “concluded
that the only effective solution that cures the PIA violation
and does not penalize SAGAM for the [contracting officer’s]
improper behavior was to return the procurement to the
status quo precancellation and disqualify Torres” through
an injunction. Id. at 23.
Given the parties’ arguments, we analyze (A) the avail-
able remedies the Claims Court may afford bid protest lit-
igants—namely, as relevant here, injunctive relief versus
a remand to the agency; and (B) the appropriateness of the
court’s injunction here.
A
The Claims Court has authority to issue an injunction
in relation to a bid protest. It has jurisdiction over bid
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SAGAM SECURITE SENEGAL v. US 15

protests pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1).
“To afford relief in such an action, the courts may award
any relief that the court considers proper, including declar-
atory and injunctive relief except that any monetary relief
shall be limited to bid preparation and proposal costs.” 28
U.S.C. § 1491(b)(2) (emphasis added).
To be sure, injunctions are to be used sparingly. As the
Supreme Court has cautioned, “[a]n injunction is a drastic
and extraordinary remedy, which should not be granted as
a matter of course,” and “[i]f a less drastic remedy” is suffi-
cient to address the relevant injury, “no recourse to the ad-
ditional and extraordinary relief of an injunction [is]
warranted.” Monsanto Co. v. Geertson Seed Farms, 561
U.S. 139, 165–66 (2010). To that end, “injunctive relief
should be narrowly tailored to fit the specific legal viola-
tions.” Gemveto Jewelry Co. v. Jeff Cooper Inc., 800 F.2d
256, 259 (Fed. Cir. 1986).
Nevertheless, when an injunction is appropriate, “the
Court of Federal Claims has broad equitable powers to
fashion an appropriate remedy.” Turner Constr. Co. v.
United States, 645 F.3d 1377, 1388 (Fed. Cir. 2011); PGBA,
389 F.3d at 1226 (“[T]he language of 28 U.S.C. § 1491(b)(2)
. . . provides the Court of Federal Claims with discretion in
fashioning relief.”). Under the APA standard, the court
may, but is not obligated to, enjoin arbitrary and capricious
action in relation to a bid protest. PGBA, 389 F.3d at
1225–26 (“[S]ection 1491(b)(4) only incorporates the stand-
ard of review of section 706(2)(A) and therefore does not
deprive a court of its equitable discretion in deciding
whether injunctive relief is appropriate.”).
The Claims Court may also remand to the relevant
agency to resolve matters. The Tucker Act provides: “In
any case within its jurisdiction, the court shall have the
power to remand appropriate matters to any administra-
tive or executive body or official with such direction as it
may deem proper and just.” 28 U.S.C. § 1491(a)(2). Prior
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16 SAGAM SECURITE SENEGAL v. US

decisions of the Claims Court have considered this provi-
sion applicable to bid protests. See, e.g., IAP Worldwide
Servs., Inc. v. United States, 160 Fed. Cl. 57, 81 (2022)
(staying case and remanding to agency); Macaulay-Brown,
Inc. v. United States, 125 Fed. Cl. 591, 607 (2016) (finding
agency cancellation and resolicitation decision unreasona-
ble, granting injunctive relief to set aside the proposed cor-
rective action and maintain the status quo, and remanding
to the agency).
“A remand ‘is the proper remedy where the court
doubts that the agency has properly exercised its discretion
but recognizes that it is the agency which should exercise
that discretion and not the court.’” IAP Worldwide Servs.,
160 Fed. Cl. at 74 (quoting 3 Charles H. Koch & Richard
Murphy, Administrative Law and Practice § 8:31 (3d ed.
2010 & Supp. 2022)). As the Supreme Court noted in Flor-
ida Power & Light Co. v. Lorion:
If the record before the agency does not support the
agency action, if the agency has not considered all
relevant factors, or if the reviewing court simply
cannot evaluate the challenged agency action on
the basis of the record before it, the proper course,
except in rare circumstances, is to remand to the
agency for additional investigation or explanation.
The reviewing court is not generally empowered to
conduct a de novo inquiry into the matter being re-
viewed and to reach its own conclusions based on
such an inquiry.
470 U.S. 729, 744 (1985). A remand may be particularly
apt in instances where the contracting officer is the appro-
priate authority to make a decision on a matter in the first
instance. See, e.g., IAP Worldwide Servs., 160 Fed. Cl. at
82 (“[R]emand is most useful when an agency retains some
discretion with regard to the action it took in violation of
the APA.” (internal citation omitted)).
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SAGAM SECURITE SENEGAL v. US 17

In sum, the Claims Court has the authority to either
issue an injunction or remand to the agency, and determin-
ing the appropriate course may depend on the facts at
hand.
B
To resolve this case, the Claims Court chose an injunc-
tion. The court’s injunction
directs State to restore this competition to its sta-
tus precancellation, enjoins State from cancelling
Solicitation No. 19AQMM18R0332 and from reso-
liciting the contract requirement, directs State to
disqualify Torres as the beneficiary of improperly
disclosed information taken from SAGAM’s pro-
posal, and directs State to proceed to award the
contract to the remaining offeror in the competitive
range if that offeror is determined to be responsi-
ble.
Decision, 154 Fed. Cl. at 675 (capitalization normalized).
We consider whether the court abused its discretion in is-
suing its injunction. PGBA, 389 F.3d at 1223.
1
We turn first to the disqualification of Torres. Alt-
hough we ultimately conclude that the court’s injunction
disqualifying Torres was not an abuse of discretion, we
note that several points weighed in favor of a remand to
the agency to consider in the first instance whether Torres
should be disqualified. As discussed above, Florida Power
and related cases contemplate a remand to the agency “for
additional investigation or explanation” in instances where
agency action is unexplained. 470 U.S. at 744. Addition-
ally, the FAR vests disqualification decisions with the
agency. FAR 3.104-7(d) (“If the HCA concludes that 41
U.S.C. chapter 21 has been violated, the HCA may direct
the contracting officer to . . . [d]isqualify an offeror.” (em-
phasis added)); NKF Eng’g, Inc. v. United States, 805 F.2d
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18 SAGAM SECURITE SENEGAL v. US

372, 377 (Fed. Cir. 1986) (explaining that a contracting of-
ficer may “cause the disqualification of a bidder”).
Leaving the disqualification decision to the agency,
which often has expertise on procurement matters and is
closest to the facts, is in many cases apt because disquali-
fication is a severe remedy—and perhaps more extreme
here because this case involves disqualification of an inno-
cent offeror. IGIT, Inc., B-271823, 96-2 CPD ¶ 51 (Comp.
Gen. Aug. 1, 1996) (“Exclusion of an offeror is a more rea-
sonable sanction if the offeror’s conduct in obtaining a com-
petitive advantage was improper.”). 4 Thus, the
government has some basis for its argument that ordinar-
ily such an important decision should remain within the
discretion of the contracting officer—and here, the record
reflects that the agency did not want or plan to disqualify
Torres. See J.A. 3013 (State invited Torres to participate
in the new solicitation); J.A. 3043 (explaining in a declara-
tion of the contracting officer before the Claims Court that
she “concluded that excluding [Torres] from the competi-
tion and making an award to SAGAM would unfairly pun-
ish [Torres] for my mistake”).
However, due to the unusual facts and litigation his-
tory of this case, we cannot say that the court’s decision to
order disqualification of Torres rather than remand to the
agency constitutes an abuse of discretion.
Crucially, State presented little to no evidence before
the Claims Court suggesting that on remand it could re-
solve or mitigate its PIA violation in a future procurement.
Indeed, it suggested the opposite. The contracting officer
admitted that she could not mitigate the PIA violation.

4 Although GAO decisions are not controlling, we
have recognized GAO’s expertise in government contract
matters. Allied Tech. Grp., Inc. v. United States, 649 F.3d
1320, 1331 n.1 (Fed. Cir. 2011).
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SAGAM SECURITE SENEGAL v. US 19

J.A. 2219 (“We found that we cannot mitigate the PIA vio-
lation.”). The agency did not contend in briefing its motion
for judgment on the administrative record that it could mit-
igate its PIA violation. SAGAM Securite Senegal v. United
States, 156 Fed. Cl. 319, 326 (2021) (explaining that the
government did not argue that it “might mitigate the [con-
tracting officer’s] improper disclosure to Torres in a new
procurement . . . either in its motion for judgment on the
administrative record or in its reply brief”). In fact, before
the Claims Court, State did not raise mitigation measures
until after its merits briefing, during subsequent briefing
on injunctive relief. Id. at 326 & n.4. 5 The court therefore
determined that State’s mitigation argument was un-
timely. Id. Because State did not show that it could miti-
gate the harm from its PIA violation in a future
procurement, it provided little assurance to the court that
a remand would resolve the matter.
Even if State had not forfeited its argument that it
could mitigate the harm to SAGAM in a future procure-
ment, the mitigation measures that State raised late in the
Claims Court proceedings and again on appeal are ques-
tionable at best, leaving the Claims Court to reasonably
doubt whether State’s mitigation efforts would lead to a
satisfactory conclusion. State “suggested to the trial court
that the future solicitation might reasonably mitigate the
harm of the PIA violation by either listing the Senegalese
statutes and labor agreements in the new solicitation, or

5 The Claims Court explained that its supplemental
briefing order “specifically instructed that these briefs did
not provide an opportunity for the parties to present addi-
tional argument on the merits.” SAGAM Securite Senegal,
156 Fed. Cl. at 326 n.4. The court noted that State did not
argue on the merits that “a mitigation plan could poten-
tially permit Torres to fairly compete against SAGAM in a
new procurement.” Id. at 326.
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20 SAGAM SECURITE SENEGAL v. US

by requiring all offerors to list applicable Senegalese stat-
utes and labor agreements in their proposals.” Appellant’s
Br. 30 (citing Court of Federal Claims Case No. 21-1138,
ECF No. 36 at 5 n.2). While this could level the playing
field in favor of other offerors, State’s solution ignores that
SAGAM presented a stronger understanding of local labor
laws in its proposal premised on its thirty-five years of ex-
perience but lost that competitive advantage due to State’s
mistake. Decision, 154 Fed. Cl. at 672 (recognizing
SAGAM as the “long-term incumbent contractor” who lost
the “opportunity to fairly compete”). State’s proposed mit-
igation measures further ignore that the contracting officer
disclosed more than public laws alone. The Claims Court
found that the disclosed information constitutes SAGAM’s
own cost and pricing data, concluding that “each of
SAGAM’s citations to these laws and agreements was
linked to specific aspects of contract performance and con-
tract costs.” Id. at 663. The disclosed information “related
to the exigencies of complying with local labor laws and la-
bor agreements in Senegal and set forth SAGAM’s under-
standing of those local conditions. This understanding was
essential to SAGAM’s plan for the compensation and bene-
fits that would be provided to its guard force.” Id.; see also
Reply Br. 20 n.3 (acknowledging the disclosure included
SAGAM’s application of a labor agreement). For these rea-
sons, State’s solution does nothing to address the unique
harm to SAGAM from the disclosure of its proposal infor-
mation.
State’s arguments fare no better on appeal and fail to
persuade us that the Claims Court abused its discretion by
issuing an injunction rather than remanding to the agency.
We recognize that, in the normal course, the proper remedy
under Florida Power and its progeny might have been to
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SAGAM SECURITE SENEGAL v. US 21

remand to the agency. 6 Florida Power, 470 U.S. at 744.
However, the Supreme Court recognized that a remand
might not be the “proper course . . . in rare circumstances.”
Id. The Claims Court acknowledged here that “this type of
PIA violation appears to be rare.” Decision, 154 Fed. Cl. at
669 n.10. The court found that “the [contracting officer’s]
actions, which were contrary to law, were highly unusual
and egregious,” and noted that “protests involving actual
procurement integrity violations are relatively rare, as are
injunctions issued in the context of corrective actions fo-
cused on such violations.” SAGAM Securite Senegal, 156
Fed. Cl. at 327.
Thus, considering the unique circumstances presented
by the contracting officer’s PIA violation, the undisputed
prejudice to SAGAM, State’s admission of its inability to
mitigate the harm, State’s failure to suggest reasonable
mitigation measures even on appeal, and State’s continued
insistence that no PIA violation even occurred (contrary to
both the HCA’s and contracting officer’s findings), State’s
actions have created a situation that warrants an injunc-
tion. There are few remaining remedies other than dis-
qualification. While a remand to the agency to disqualify
Torres in the first instance provides due recognition of the
contracting officer’s discretion and may be preferable in
most cases, the Claims Court did not abuse its discretion
in concluding an injunction would efficiently resolve this

6 Notably, State made no mention of Florida Power
and its progeny—in other words, cases suggesting that we
must vacate and remand to allow the agency to better ex-
plain its corrective action—at the Claims Court, and did
not do so on appeal until its reply brief and at oral argu-
ment. Reply Br. 25; see also Citations of Supplemental Au-
thority (Aug. 24, 2023) at 1, ECF No. 67 (conceding it “did
not cite to Florida Power to support these [remand] conten-
tions at the trial court”).
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22 SAGAM SECURITE SENEGAL v. US

dispute. The Claims Court is empowered to do so. 28
U.S.C. § 1491(b)(2). And, the court is afforded discretion in
crafting its injunctive relief. Turner Constr. Co., 645 F.3d
at 1388. Accordingly, we conclude the Claims Court did not
abuse its discretion in disqualifying Torres from competi-
tion.
2
Second, we see no abuse of discretion in the court’s or-
der to restore competition to its status pre-cancellation and
make an award to the remaining competitive-range offeror.
In Parcel 49C Ltd. Partnership v. United States, this
court affirmed a decision of the Claims Court that enjoined
cancellation of a solicitation by the General Services Ad-
ministration (“GSA”) after GSA had already made award
to Parcel 49C. 31 F.3d 1147, 1148 (Fed. Cir. 1994). Be-
cause GSA’s cancellation decision lacked a rational basis,
the court’s injunction “required GSA to proceed with award
of the solicitation.” Id. at 1149. We recognized the limited
“role the court should play in the procurement process—
leaving the choice of contractor up to the Government”—
but nevertheless determined the court had “properly uti-
lized its power to grant injunctive relief in pre-award bid
protests,” id. at 1153, finding the injunction “consistent
with the Court of Federal Claims’ limited role,” id. at 1154.
We noted that “[t]he injunction will remove the taint of il-
legality from this procurement process without interfering
with the Government’s discretion to select its own contrac-
tors.” Id. And, in terms of requiring GSA to proceed with
its award, we explained “the injunction does not direct the
contract award to a particular bidder. This injunctive rem-
edy merely restores the status quo ante the illegal cancel-
lation.” Id.
Like in Parcel 49C, the injunction here did not direct
an award to SAGAM. Rather, the injunction specifically
directed State “to restore this competition to its status pre-
cancellation”; in other words, to the pre-cancellation status
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SAGAM SECURITE SENEGAL v. US 23

where the agency had established a competitive range with
Torres and SAGAM. Decision, 154 Fed. Cl. at 675. Because
the court found it necessary to disqualify Torres, it directed
“State to proceed to award the contract to the remaining
offeror in the competitive range if that offeror is deter-
mined to be responsible.” Id. In many ways, the court’s
order is a product of the limited size of the competitive
range. State has recognized that had there been additional
offerors in the competitive range, its argument that the
court directed award to SAGAM might shift. 7 We find no
abuse of discretion in the Claims Court’s instruction to re-
turn competition to its status pre-cancellation, notwith-
standing that in this particular situation there was only
one remaining eligible offeror. See Turner Constr. Co., 645
F.3d at 1388 (“Injunctive relief is appropriate if it enjoins
the illegal action and returns the contract award process to
the status quo ante.” (cleaned up)); Parcel 49C, 31 F.3d at
1154.
The Claims Court did not abuse its discretion in issu-
ing a permanent injunction disqualifying Torres and di-
recting an award to a responsible remaining offeror in light
of the unusual facts of this case and the court’s authority
to award equitable relief.
CONCLUSION
For the foregoing reasons, we conclude that the
agency’s cancellation and resolicitation decision lacked a
rational basis. The Claims Court did not abuse its discre-
tion in issuing a permanent injunction to remedy the arbi-
trary and capricious agency action. We affirm.
AFFIRMED

7 Oral Arg. at 1:03:48–1:04:18.