In the United States Court of Federal Claims
No. 17-603C
(Filed: June 1, 2017)*
*Opinion originally issued under seal on May 23, 2017
)
IRON BOW TECHNOLOGIES, LLC, )
)
Plaintiff, )
)
v. )
) Post-Award Bid Protest; Temporary
THE UNITED STATES, ) Restraining Order; Preliminary
) Injunction; Technical Evaluation; Price
Defendant, ) Evaluation; Likelihood of Success on
) the Merits; Irreparable Harm; Balance
and ) of Hardships; Public Interest
)
ALAMO CITY ENGINEERING )
SERVICES, INC., )
)
Defendant-Intervenor. )
)
James C. Fontana, Tysons Corner, VA, for plaintiff. Jeffry R. Cook and L. James
D’Agostino, Tysons Corner, VA, of counsel.
Robert M. Norway, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant
Director, Robert E. Kirschman, Jr., Director, and Chad A. Readler, Acting Assistant
Attorney General, for defendant. Steven R. Hall, Assistant Counsel, Marine Corps
Systems Command, Stafford, Virginia, of counsel.
Richard J. Conway, Washington, DC, for defendant-intervenor. Michael J.
Slattery, New York, NY, of counsel.
OPINION DENYING PLAINTIFF’S MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
FIRESTONE, Senior Judge
Pending before the court in this post-award bid protest is plaintiff Iron Bow
Technologies, LLC’s (“Iron Bow”) motion for a temporary restraining order and
preliminary injunction pursuant to 28 U.S.C. § 1491(b), Rule 65 of the Rules of the
United States Court of Federal Claims (“RCFC”), and Appendix C § V of the court’s
rules. In its post-award bid protest filed on May 4, 2017 Iron Bow challenges the United
States Marine Corps, Marine Corps Systems Command’s (“Marine Corps”) award of a
two-year firm-fixed-price contract to defendant-intervenor Alamo City Engineering
Services, Inc. (“ACES”) under solicitation no. M67854-16-R-4001 (“the solicitation”).
The purpose of the contract is to provide computer security hardware and related services
to the Marines Corps in order to address known security vulnerabilities in the Marine
Corps’ secure and unsecure computer networks.
In its motion, Iron Bow contends that the court should preliminarily enjoin the
award to ACES on the grounds that it is likely to succeed on the merits of its challenges
to the Marine Corps’ rating of Iron Bow’s technical approach as “marginal” and the
agency’s failure to determine that Iron Bow’s proposed price was reasonable for
performing the contract in accordance with its proposal. Iron Bow argues that these
errors led to an improper best value determination and an improper contract award to
ACES. Iron Bow further argues that it will suffer irreparable harm if preliminary relief is
not granted and that the balance of equities and public interest favor a preliminary
injunction.
The government argues that Iron Bow’s motion should be denied on the grounds
that Iron Bow is not likely to succeed on the merits of its bid protest. The government
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contends that the agency properly evaluated Iron Bow’s technical approach and proposed
price in accordance with the requirements of the solicitation and detailed discussions.
The government also argues that Iron Bow will not suffer irreparable harm if preliminary
relief is not granted and that the equities and public interest balance in favor of allowing
the contract with ACES to continue. The government explains that because the contract
has a test phase and because *****, Iron Bow will be able to continue the contract if the
award is set aside. The government further argues that the balance of hardships and the
public interest weigh against granting Iron Bow’s request for preliminary relief on the
grounds that fixing the Marine Corps’ network vulnerabilities is critical to the Marine
Corps’ mission. In support of its position, the government provides declarations from
Eric L. Garneski, who was the Marine Corps’ Network Access Control, Compliance, and
Remediation (“NACCR”) Project Engineering Technical Lead and source selection
evaluation board chair for this procurement, dated May 8, 2017, and Jennifer J. Glenn,
the contracting officer, dated May 8, 2017. Mr. Garneski explains in his declaration that
because of the nature of the network, which stretches from “*****” and the “nature of
modern-day computer exploits,” timely performance under the contract is essential.
According to Mr. Garneski, any delay “would be detrimental to the security” of the
network because *****. Declaration of Eric L. Garneski, May 8, 2017 (“Garneski
Decl.”) at ¶¶ 3-9. Ms. Glenn also states in her declaration that contract performance “is
extremely time sensitive” and that “any delay in the implementation . . . would be
detrimental to national security.” Declaration of Jennifer J. Glenn, May 8, 2017 (“Glenn
Decl.”) ¶ 18.
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For the reasons below, the court finds that Iron Bow is unlikely to succeed on the
merits and will not suffer irreparable harm if preliminary relief is not granted. In
addition, the court finds that the balance of hardships and public interest weigh strongly
against preliminary relief in this case. Therefore, Iron Bow’s motion for a temporary
restraining order and preliminary injunction is DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Urgent Need Statement and Solicitation
On August 19, 2015, Major General Daniel O’Donohue, Marine Corps Cyber
Command, certified an urgent universal need statement for “network access control”
hardware and services to mitigate “a network security vulnerability that leaves all
commanders at risk of mission failure.” AR 1-8. The urgent universal need statement
asserted that “Recent classified attacks and compromises are well documented and could
have been prevented if C2C was implemented. *****.” AR 4, 5.
In April 2016, the Marine Corps issued an urgent statement of need for Network
Access Control, Compliance, and Remediation with a “process for executing rapid cyber
acquisition.” AR 10. In response, the Marine Corps issued the subject solicitation on
September 20, 2016. AR 158-1106; Glenn Decl. ¶¶ 3-5. The solicitation explained that
the effort would include a prototype testing phase, an integration phase, training, and
follow-on annual lifecycle sustainment support. AR 178-200 (original performance work
statement), 791-814 (amendment no. 1), 1019-41 (amendment no. 3). The solicitation
included thirty-five contract line items. AR 160-77, 1098-99. Contract line item number
1 was for PAC/ Initial Design. AR 1099. Contract line item number 2 was for
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NIR/System Final Design. Id. Contract line item number 3 was for Program
Management. Contract line item numbers 4 through 11 were for Facility Assessment. Id.
Contract line item numbers 12 through 19 were for Installation/Testing/Operator
Training. Id. Contract line item numbers 20 and 21 were for System Administration
Training. Id. Contract line item numbers 22 through 29 were for Design. Id. Contract
line item numbers 31 and 32 were for Warranty and Maintenance. Id. Contract line item
number 33 was for deliverables on the “Contract Data Requirements List.” AR 176,
1038-41. Contract line item numbers 34 through 36 were for Lifecycle Sustainment and
Support. AR 1099-1100. 1
The solicitation stated that the Marine Corps intended to award a single Firm-
Fixed-Price, Indefinite Delivery Indefinite Quantity (“IDIQ”) contract to an offeror
whose proposal was technically acceptable, whose offer was deemed responsive to the
solicitation requirements, and whose overall offer represented the “best value” to the
government. AR 1091.
The solicitation required each offeror to submit “[a] concise and comprehensive
proposal.” AR 1077. The solicitation provided that “[o]rganization, clarity, accuracy of
information, relevance, and completeness are of prime importance.” Id. Proposals
needed to be “complete and clear in all respects without the need for additional
explanation or information.” Id. The solicitation required that each proposal “provide
1
Contract line item number 30, for NAC hardware and initial warranty, was deleted. AR 174,
1074, 1098-1100.
5
sufficient detail and scope to permit the Government to evaluate it with respect to the
evaluation factors specified in the Evaluation Criteria of this solicitation.” Id.
The solicitation cautioned offerors “against general, vague, or unsubstantiated
statements, which prevent or render difficult the Government’s evaluation of the
proposal.” Id. The solicitation provided that “[t]he Government will not assume that an
Offeror possesses any capability, understanding, and/or commitment that is not
specifically delineated and supported in its respective proposal.” Id. The solicitation also
required offerors to “[e]nsure each section of the proposal adequately contains all the
information necessary for evaluation.” AR 1084.
The solicitation identified five evaluation factors: (1) technical approach, (2)
management approach, (3) past performance, (4) price (“evaluated but not rated”), and
(5) small business participation. AR 1091.
With regard to the Marine Corps’ evaluation of offerors’ technical approaches, the
solicitation stated that the agency would evaluate six elements: (1) ability to execute, (2)
representative configuration, (3) requirements evaluation matrix, (4) contractor work
breakdown structure, (5) quality assurance program plan, and (6) sustainment. AR 1092;
see also AR 1084-86 (instructions to offerors regarding submission of technical
approaches).
The solicitation stated that the Marine Corps would evaluate “all documents
submitted in accordance with Attachment 1- Instruction to Offerors” to determine
whether the proposed technical approach “fully addresses each of the Government’s
stated [performance work statement] objectives and provides a detailed, comprehensive,
6
well-articulated, reasonable, understandable, feasible/realistic approach that can be
implemented within the stated parameters.” AR 1092. The agency would also evaluate
proposals “to determine whether the information provided demonstrates an understanding
of the existing network environment and [performance work statement] requirements.”
Id. 2
2
With regard to the technical evaluation rating process, the solicitation stated that the agency
would assign technical ratings to “reflect[] the degree to which the proposed approach meets or
does not meet the solicitation’s requirements through qualitative assessment of a proposal’s
strength, weaknesses, significant weaknesses, deficiencies, omissions and/or risks.” AR 1093.
A rating of “Outstanding” meant that the “Proposal indicates an exceptional approach and
understanding of the requirements and contains multiple strengths, and risk of unsuccessful
performance is low,” which in turn meant that the “Proposal may contain weakness (es) which
have little potential to cause disruption of schedule, increased costs or degradation of
performance. Normal contractor effort and normal government monitoring will likely be able to
overcome any difficulties.” AR 1093-94. A rating of “Good” meant that the “Proposal indicates
a thorough approach and understanding of the requirements and contains at least one strength,
and risk of unsuccessful performance is low to moderate,” which in turn meant that the “Proposal
contains a significant weakness or combination of weaknesses which may potentially cause
disruption of schedule, increased cost or degradation of performance. Special contractor
emphasis and close government monitoring will likely be able to overcome difficulties.” Id. A
rating of “Acceptable” meant that the “Proposal meets requirements and indicates an adequate
approach and understanding of the requirements, and risk of unsuccessful performance is no
worse than moderate.” Id. A rating of “Marginal” meant that the “Proposal has not
demonstrated an adequate approach and understanding of the requirements, and/or risk of
unsuccessful performance is high,” which in turn meant that the “Proposal contains a significant
weakness or combination of weakness which is likely to cause significant disruption of schedule,
increased cost or degradation of performance. Is unlikely to overcome any difficulties, even with
special contractor emphasis and close government monitoring.” Id. The solicitation stated that
the agency “does not intend to award to any Offeror whose proposal is evaluated as ‘Marginal’
or lower for any factor.” AR 1093. A rating of “Unacceptable” mean that the “Proposal does
not meet requirements of the solicitation, and thus, contains one or more deficiencies, and/or risk
of unsuccessful performance is unacceptable” which in turn meant that the “Proposal contains a
material failure or a combination of significant weakness that increases the risk of an
unsuccessful performance to an unacceptable level.” AR 1093-94. The solicitation stated that a
proposal rated unacceptable would be “unawardable.” AR 1093.
7
The solicitation required offerors to include in their technical proposals a
contractor work breakdown structure with an “appropriate level of detail to provide the
Government the ability to understand how the Offeror intends to manage the proposed
effort with visibility of tasks, activities, schedule, and list of deliverables.” AR 1085.
Offerors needed to identify in the contractor work breakdown structure “the number of
personnel assigned to each task by labor category.” Id. The solicitation further directed
offerors to include an initial staffing plan that “provides personnel with the requisite
skills, experience, and qualifications to complete the requirements” of the solicitation.
AR 1086.
With regard to pricing, the solicitation required offerors to include price
information by contract line items. AR 1087 (Part IV Section 1, as amended). The
solicitation stated that:
The Basis of Estimate (BOE) shall include labor categories, labor
descriptions, labor hours, and travel. The proposal narrative, initial staffing
plan, and BOE must use identical terminology to describe labor categories.
Each labor category must clearly state what company the personnel are
from (i.e. OEM, Offeror, or Other subcontractor). The Offeror shall
provide a priced Bill of Material (BOM) for all hardware/software licenses
by location and enclave (i.e. NIPR/SIPR). The BOM and BOE shall be
entered on the spreadsheet file, Attachment_3_Of_52.212-1.xls. The BOM
and BOE shall be included in the Price proposal. Price proposal shall be
entered on the spreadsheet file, Attachmnet_3_Of_52.212-1.xls, readable in
Microsoft Office Excel format. Offerors shall not alter the format of the
spreadsheets except that column(s) and row(s) may be widened or added as
needed. The contracting officer must be able to determine that all aspects
of the requirements have been considered in the proposal and that the price
is reasonable for the work required.
AR 1087. Under the heading “Ground Rules and Assumptions,” the solicitation required
offerors to explain in the price volume “[a]ny inconsistency between promised
8
performance, the technical proposal, identified personnel resources and cost/price.” AR
1087. The solicitation stated that prices would be “evaluated, but not rated.” AR 1096.
The contracting officer would perform a price proposal analysis to determine whether the
price was “fair and reasonable.” Id. The contracting officer reserved the right to reject
an offer if it was determined that unbalanced pricing posed an unacceptable risk to the
government in accordance with FAR § 15.404-1(g). Id. In addition, the solicitation
provided that “[t]he proposed price to the Government must be compatible with the
technical portion of the offer.” AR 1096. The solicitation stated that “[t]he Government
intends to make a determination of fair and reasonable pricing on the basis of adequate
competition. However, in accordance with FAR 15.404-1, the government may use any
of the analytical techniques in that section, either alone or in combination with each
other, to determine that the award price is fair and reasonable.” Id.
B. Proposals, Evaluation, and Source Selection Decision
The Marine Corps received initial proposals on October 20, 2016. AR 1107-1885.
Following a price evaluation and a small business evaluation, which were completed on
November 18, 2016, and a technical evaluation and a past performance evaluation, which
were completed on November 30, 2016, the Marine Corps found that due to the number
of deficiencies and weaknesses none of the original proposals, including Iron Bow’s
proposal, was acceptable for an award. AR 1908-70 (Technical and Past Performance
Evaluation Report), 1986-89 (Business Clearance Memorandum, Dec. 1, 2016). The
agency conducted the first round of discussions from December 1, 2016 through
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December 21, 2016. AR 2009-12 (first round discussion letters), 2013-56 (responses),
2066-2114 (requests for final proposal revisions and discussions).
In the second round of proposals, referred to as the “first final proposal revisions,”
or “FPR,” the Marine Corps again found that each revised proposal, including Iron Bow’s
proposal, was “unacceptable.” AR 2930 (Technical and Past Performance Evaluation –
FPR1, Feb. 1, 2017). The Marine Corps conducted the second round of discussions from
February 3, 2017 through February 10, 2017. AR 2961-66 (second round discussion
letters), 2967-95 (requests for second final proposal revisions and discussions).
In its request for Iron Bow’s second final proposal revision, the Marine Corps
stated: “You may revise any portion of your original proposal. However, you are
encouraged to limit your changes to those areas addressed in discussions; areas already
found acceptable but subsequently changed per your FPR could be found unacceptable
during final evaluations.” AR 2986. The Marine Corps’ letter also stated: “[s]hould you
revise any portion of your original proposal, you must follow the directions below
[referring to submission criteria in the request for proposals, or “RFP”] and in the RFP
Amendment 0005 (Enclosure 2), and submit a complete FPR that includes all the
information described in this letter and the accompanying enclosures.” Id.
In its discussions with Iron Bow leading up to the second final proposed revision,
the Marine Corps raised a number of comments regarding Iron Bow’s “ability to execute”
the requirements of the performance work statement, in particular with regard to Iron
10
Bow’s “basis of estimate” and the labor hours Iron Bow had proposed for the various
contract line items. AR 2988. 3
Two sets of comments are relevant to this case. In the first set of comments, with
regard to the system-level engineering document package (section 3.2.2 of the
performance work statement) and Iron Bow’s basis of estimate, the agency identified a
weakness in Iron Bow’s first final proposal revision that “the BOE includes labor
categories that are not defined in the narrative.” Id. The agency requested that Iron Bow
“provide labor categories that are consistent with the BOE and narrative section of the
proposal (Part 2 Section 2 Staffing Plan).” Id. Iron Bow responded that it would “add
the LCAT ‘Engineer Level 1’ to the narrative of Part II Section 2.” Id. Iron Bow also
stated that it had “reviewed both Part II Section 2 and our BOE from the last submission
and other than ‘Engineer Level 1’ show the same LCATs.” Id. Iron Bow asked whether
the agency could “point to any other instance that Iron Bow’s LCATs do not match our
BOE?” Id. In response, the agency asked Iron Bow to update its final proposal revision
“so that [it] is consistent between the BOE and narrative section of Part II Section 2,
Initial Staffing Plan that includes all LCATs being proposed including OEM support
personnel.” Id. The agency explained that “[a]n example of inconsistent proposal
information is the narrative provided in Part 2 Section II: ‘This will include the following
3
The evaluation notice also stated: “Information provided in this document cannot be used by
the Government to determine if RFP requirements have been met. All information must be
submitted in a proposal (or FPR), in the proper format, to be evaluated by the Government.” AR
2988.
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roles: Project Manager, Lead Engineer, ForeScout Architect, and Information Assurance
Lead.’ but the Lead Engineer and ForeScout Architect are not addressed in the ‘labor
category/prerequisites’ table.” Id.
In the second set of comments, with regard to Iron Bow’s basis of estimate and
price proposal, the agency identified a weakness in Iron Bow’s first final proposal
revision that “labor hours and durations for CLINS 0004 through 0011 are
underestimated for the scope of facility assessments.” Id. The agency further stated that
“Labor hours for CLINS 0012 through 0019 are underestimated *****” and that “Labor
hours for CLINS 0024, 0025, 0027, and[]0029 are underestimated *****.” Id. The
agency requested that Iron Bow provide an “updated technical approach to support their
staffing plan as it relates to their proposed scope of facility assessment, design, and
integration.” Id. Iron Bow provided the following response:
The Iron Bow Team has extensive experience scoping and delivering
services of this magnitude and feel we proposed a LoE that has accounted
for the necessary services to successfully complete the tasks required. We
scoped CLINS 0001 & 0002 with much of the needed PS Labor since this
will be the initial phase of the project and likely the most challenging while
allowing for reduced/eliminated redundancies and built economies of scale
into the CLINS in question. We are confident we had proposed a LoE that
would provide for a successful project assessment, design and integration
with qualified personnel.
With over a decade of successful delivery of firm-fixed price services to the
Government, Iron Bow is confident that the team we have compiled is
capable of delivering successfully to this requirement. Our company’s
financial strength ***** provides the Government with the assurance that
we will stand behind our proposal. We commit that we will provide what is
required for successful completion of this project. We welcome any
additional clarification to the requirement and will adjust our response to
increase your confidence in Iron Bow.
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Id. The Marine Corps then provided the following response:
The Government acknowledges and requests that the Offeror update its
FPR BOE as necessary.
Provided for informational purposes only: The Government anticipates
the labor needed for Facility Assessment, Design, and Install/Test/Doc to
be divided up 10%, 30%, 60% respectively. Offerors are NOT required
to use this labor distribution. 4
Id. With regard to the “Price Proposal Requirement (RFP page 60)” the discussion
document stated “See ‘Technical’ Tab for issues related to the BOM and BOE.” AR
2994. 5
The Marine Corps received second final proposal revisions, including Iron Bow’s
second final proposal revision, on February 16, 2017. AR 2996-3607. Evaluations were
completed on February 24, 2017. AR 3611.
In its technical evaluation report, the technical evaluation team upgraded its rating
of Iron Bow’s technical proposal from “unacceptable” to “marginal.” AR 3624. The
technical evaluation team identified one “significant weakness” related to Iron Bow’s
“ability to execute” the requirements of the solicitation. AR 3625. The technical
4
The instructions to offerors, as amended, also stated that “Only proposal sections that have
been updated/changed need to be submitted for re-evaluation.” AR 1080.
5
In its discussion with ACES leading up to the second final proposal revision, the government
identified one weakness regarding ACES’ ability to execute the requirements of the performance
work statement related to the basis of estimate. The government stated that “CLINs 0016, 0018,
0026, 0028 for design and integration are excessive in labor hours *****.” AR 2969. The
government requested that ACES update its “technical approach to support their staffing plan as
it relates to their proposed scope of design and integration.” Id. ACES concurred but noted that
it “*****.” Id. ACES explained that “*****.” Id. ACES added that “*****.” Id. The agency
acknowledged ACES response and asked ACES “to update its FPR as detailed in the ‘FPR 1
Contractor Response’ to reflect the ***** required for *****.” Id.
13
evaluation team noted that in the second round of discussions, the agency had requested
that Iron Bow substantiate hours associated with certain design and integration activities
(contract line item numbers “0012-0019 and 0024, 0025, 0027 and 0029”) which
appeared to have been underestimated for certain regions. Id. The technical evaluation
team found that despite Iron Bow’s response to comments explaining that Iron Bow stood
behind its proposal, Iron Bow had increased its labor hours associated with the design
and integration contract line items by ***** from its original proposal. AR 3625-26.
The technical evaluation team noted that Iron Bow had not updated its technical approach
to account for these changes. Id.
The technical evaluation team also noted that Iron Bow had not identified *****
labor in any of the contract line items for design, as described in the performance work
statement and associated contract data requirements list. AR 3626. The technical
evaluation team also found that Iron Bow’s technical proposal “included ***** in
Integration despite the proposed staffing plan having outlined *****.” Id.
The technical evaluation team also questioned Iron Bow’s decision to increase
proposed labor hours for sustainment activities (contract line item numbers 0034, 0035,
and 0036) by ***** even though the labor hours for sustainment activities had not been
identified as problematic in Iron Bow’s first final proposal revision and thus not raised in
discussions. AR 3626. According to the technical evaluation team, this meant “Iron
Bow proposed ***** of the total labor to sustainment activities versus ***** of labor
hours for the complex systems integration.” Id. The technical evaluation team concluded
that because Iron Bow had increased the labor hours in its basis of estimate without
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updating its technical approach to substantiate or account for those changes, the
evaluation team “was unable to determine the reasonableness of the proposed labor hours
as they would apply to the technical approach, and determined that this introduces a high
level of risk of unsuccessful performance of the proposed design and integration, and
sustainment activities.” Id. The technical evaluation team found that “[b]y not proposing
either adequate or substantiated labor hours for design and integration or sustainment
activities, this jeopardizes a successful implementation of the proposed solution to meet
the urgency of this requirement.” Id.
The price evaluation team found that Iron Bow’s price calculations were
“complete and accurate.” AR 3650. However, the price evaluation team stated that it
could not determine that Iron Bow’s total contract price was reasonable for performing
the contract in accordance with Iron Bow’s technical proposal. Id. In particular, the
price evaluation team stated that Iron Bow’s second final proposal revision “contained
excessive labor hours for Lifecycle and Sustainment that were not supported in its
technical approach; therefore, the total contract price could not be determined
reasonable.” AR 3651.
As documented in a source selection decision memorandum dated March 20,
2017, the source selection authority determined that ACES, which had received a rating
of “good” for its technical proposal, provided the best value to the government for the
subject solicitation. AR 3669-91. The source selection authority rated Iron Bow’s
technical approach “marginal” for the same reasons the technical evaluation team had
identified. AR 3683-85. The source selection authority also found that Iron Bow’s
15
proposed price could not be determined reasonable based on the evaluation teams’
findings of “a significant weakness/issues relating to the technical approach and
inconsistencies between the technical approach and the [basis of effort].” AR 3686. 6
C. Award and Debriefing
The Marine Corps awarded the contract to ACES on March 22, 2017. AR 3716.
On March 23, 2017, the Marine Corps informed Iron Bow that it had not been selected
for an award. AR 3714. The letter stated that ACES had proposed a technically superior
proposal for the procurement and that the Marine Corps had identified issues regarding
Iron Bow’s “proposed distribution of labor hours, which were identified during
discussions.” Id. The agency stated that although Iron Bow had adjusted its labor hours
in the second final proposal revision, “Iron Bow further assigned ***** of the labor
hours to the sustainment phase and ***** labor hours for the design and integration
phases.” Id. The agency found that “[t]his mix of labor and overall technical approach
introduced an elevated risk of unsuccessfully meeting all of the requirements of this
urgent-needs procurement.” Id. Therefore, the letter stated, the Marine Corps rated Iron
Bow’s technical proposal “marginal” and the proposal “was therefore unawardable in
accordance with the terms of the RFP.” Id. With regard to price, the letter stated that the
agency could not determine that Iron Bow’s proposed price was reasonable “in view of
the noted disparity between the proposed labor hours and [basis of estimate].” Id.
6
The source selection authority found that ACES’ explanation in its discussion comments that
“*****” resolved the weakness related to the agency’s concern that ACES had proposed *****.
AR 2678.
16
On March 31, 2017, the Marine Corps provided Iron Bow with a written
debriefing pursuant to FAR § 15.506. AR 3808-11. The March 31, 2017 debriefing
repeated discussion comments 7 and the findings from the technical evaluation team, price
evaluation team, and the source selection authority with regard to the agency’s ratings for
Iron Bow’s technical and price proposals. AR 3809-10. The agency acknowledged that
Iron Bow’s proposal received ratings of “satisfactory” for past performance, “acceptable”
for small business participation, and “acceptable” for management factor. Id. However,
the Marine Corps found that because Iron Bow’s proposal received an overall rating of
“marginal” for its technical approach, with no strengths, no deficiencies, no weaknesses,
and one significant weakness, the proposal was unawardable under the terms of the
solicitation. AR 3810-11. The Marine Corps noted that the solicitation had provided that
“[t]he Government does not intend to award to any Offeror whose proposal is evaluated
as “Marginal” or lower for any factor;” and “[t]he proposed price to the Government
7
With regard to the discussion comments, the debriefing stated that “[d]uring the second round
of discussions, the Government requested, among other things, that Iron Bow substantiate hours
associated with CLINS ***** for proposed design and integration activities.” AR 3809. The
debriefing further stated that “[i]t was the Government’s conclusion during FPR-1 that a
weakness existed as the labor hours associated with these CLINs appeared to be underestimated
***** based on *****.” Id. The debriefing noted that “[t]he Government requested that Iron
Bow update its technical approach to substantiate its position and mitigate these concerns” and
that “Iron Bow responded by stating that they ‘. . . have over a decade of successful delivery of
firm-fixed price services to the Government . . . and we will stand behind our proposal.’” Id.
The debriefing continued that “[t]he Government further provided to all Offerors in the second
round of discussions that the expectation for the integration effort was envisioned to occupy
approximately 60% of the total labor being proposed; however, Offerors were not required to
propose to that percentage.” Id.
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must be compatible with the technical portion of the offer.” AR 3811. The agency also
noted that it had not used a ranking system during the source selection. Id.
D. GAO protest
Iron Bow filed a bid protest before the Government Accountability Office
(“GAO”) on April 4, 2017, challenging the award decision on the grounds that the
Marine Corps’ technical evaluation was not supported. AR 3841. The Marine Corps
issued a stop work order to ACES on April 5, 2017. Glenn Decl. ¶ 13. GAO dismissed
the protest on April 27, 2017 on the grounds that Iron Bow was not an “interested party.”
AR 3885-87. Specifically, the GAO found that because Iron Bow failed to expressly
challenge the Marine Corps’ evaluation of its price, which was another basis upon which
its proposal was determined unawardable, Iron Bow lacked the requisite interest to
challenge other aspects of the agency’s evaluation. AR 3886-87. The Marine Corps
rescinded the stop work order on April 28, 2017. Glenn Decl. ¶ 13.
E. Protest before this Court
Iron Bow filed its complaint in this court on May 4, 2017 challenging both the
Marine Corps’ technical evaluation and price evaluation of its proposal. Along with its
complaint, Iron Bow filed the pending motion for a temporary restraining order and
preliminary injunction (ECF No. 5). ACES filed its motion to intervene on May 5, 2017
(ECF No. 12) and the court granted the motion at the status conference held that day.
The government filed its response to Iron Bow’s motion for preliminary relief on
May 8, 2017 (ECF No. 19). As noted above, the government supported its response with
declarations from Eric L. Garneski, who was the Marine Corps’ NACCR Project
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Engineering Technical Lead and source selection evaluation board chair for this
procurement, dated May 8, 2017, and Jennifer J. Glenn, the contracting officer, dated
May 8, 2017. ACES filed its response on May 9, 2017 (ECF No. 21). ACES provided a
declaration by Craig T. Stephens, President and CEO of ACES, dated May 9, 2017. The
government filed the administrative record on May 10, 2017 (ECF No. 23) and a
correction and amendment to the administrative record were made on May 17, 2017
(ECF Nos. 26, 27). Iron Bow filed its reply in support of its motion for a temporary
restraining order and preliminary injunction on May 10, 2017 (ECF No. 24).
The court heard oral argument on Iron Bow’s motion for a temporary restraining
order and preliminary injunction on May 12, 2017.
II. JURISDICTION AND LEGAL STANDARD
This court has “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). 8 In addition, the court may award “any relief that the court
considers proper, including declaratory and injunctive relief except that any monetary
relief shall be limited to bid preparation and proposal costs.” Id. at § 1491(b)(2); see also
8
There is no dispute that Iron Bow has standing to bring this bid protest. Iron Bow was an
“interested party” as an actual bidder with a direct economic interest in the procurement, on the
grounds that it had a substantial chance of winning the contract at issue, and was prejudiced by
an alleged significant error in the procurement process. Diaz v. United States, 853 F.3d 1355,
1358-59 (Fed. Cir. 2017) (citations omitted).
19
RCFC 65, App. C § V (providing procedures for requesting a preliminary injunction or a
temporary restraining order).
While the court may grant preliminary injunctive relief, it is well-settled that “a
preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). To obtain a
preliminary injunction, a plaintiff must show (1) “a likelihood of success on the merits”;
(2) that it “will suffer irreparable harm if the court withholds injunctive relief”; (3) that
“the balance of hardships to the respective parties favors the grant of injunctive relief”;
and (4) that “it is in the public interest to grant injunctive relief.” PGBA, LLC v. United
States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill. of
Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987)). 9 In this connection, this court must
“give due regard to the interests of national defense and national security and the need for
expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3); see also Winter, 555 U.S.
at 24 (giving “great deference to the professional judgment of military authorities
concerning the relative importance of a particular military interest” where the case
involved “‘complex, subtle, and professional decisions as to the composition, training,
equipping, and control of a military force,’ which are ‘essentially professional military
judgments.’” (citations omitted)).
9
Because the court has before it a motion for a preliminary injunction, Iron Bow’s application
for a temporary restraining order has been subsumed into its motion for a preliminary injunction.
See, e.g., EOD Tech., Inc. v. United States, 82 Fed. Cl. 12, 19 (2008).
20
IV. DISCUSSION
A. Iron Bow is Not Likely to Succeed on the Merits
1. Standard of Review in Bid Protests
This court reviews protests of agency procurement decisions under the standards
set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See Per Aarsleff
A/S v. United States, 829 F.3d 1303, 1309 (Fed. Cir. 2016) (citing 28 U.S.C. §
1491(b)(4)). “[A]n agency’s decision is to be set aside only if it is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” Id. (citing NVT Techs.,
Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). “A court ‘must sustain an
agency action unless the action does not evince rational reasoning and consideration of
relevant factors.’” Id. (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed.
Cir. 2010)).
2. Technical evaluation
The Marine Corps determined that Iron Bow’s technical proposal was marginal
based on its finding of a “significant weakness” related to Iron Bow’s failure to
substantiate changes to labor hours for design and integration activities, proposing a
significant but unexplained increase in hours for sustainment activities, and failing to
include labor hours for a Cyber Security Engineer in design activities.
This court grants great deference to an agency’s technical evaluations. See L-3
Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 643, 650 (2008); Overstreet Elec.
Co. v. United States, 59 Fed. Cl. 99, 117 (2003). The court has found that “[t]he
evaluation of proposals for their technical excellence or quality is a process that often
21
requires the special expertise of procurement officials, and thus reviewing courts give the
greatest deference possible to these determinations.” Beta Analytics Int’l, Inc. v. United
States, 67 Fed. Cl. 384, 395 (2005) (citing E.W. Bliss Co. v. United States, 77 F.3d 445,
449 (Fed. Cir. 1996)).
Iron Bow argues the agency’s finding that it failed to substantiate or account for
changes to labor hours for design and integration activities was irrational on the grounds
that Iron Bow’s changes were consistent with and made in response to the agency’s
discussion comments. Iron Bow argues that it “substantiated” the hours in its basis of
effort by describing how labor hours would be allocated by contract line item number,
site location, and labor category. Iron Bow also argues that the agency’s comment that
Iron Bow failed to “substantiate” its changes in hours is based on an improper reliance on
the parties’ discussions as opposed to the evaluation criteria stated in the solicitation. 10
Iron Bow argues that the agency “essentially directed” Iron Bow’s changes to its proposal
based on the agency’s anticipated labor mix and that it added hours to meet the
10
Iron Bow also argues that given the agency’s reliance on Iron Bow’s comments in the
discussion document in its evaluation, it is “entirely probable” that the agency likewise failed to
evaluate ACES’s proposal solely on the contents of its written proposal and, instead, relied on
ACES’s discussion comments. Iron Bow argues that this would be contrary to the terms of the
solicitation and an additional ground to set aside the award to ACES. As noted above, the source
selection authority found that ACES’ explanation in its discussion comments that “*****”
resolved the weakness related to the agency’s concern that ACES had proposed excessive labor
hours associated with design and integration. AR 2678. There is no analysis in the briefs and no
indication in the record that ACES, like Iron Bow, significantly revised its basis of estimate or
hours without updating its technical proposal. See also AR 2198-2203 (ACES’ basis of estimate
for its first final proposed revision), 3195-97 (ACES’ basis of estimate for its second final
proposed revision), 3248-77 (redline of ACES’ technical approach in its second final proposed
revision).
22
government’s statement in its comments that it “anticipates the labor needed for Facility
Assessment, Design, and Install/Test/Doc to be divided up 10%, 30%, 60% respectively.”
AR 2988. Iron Bow argues that it increased hours to meet the agency’s anticipated
allocation *****.
With regard to the agency’s comments about its proposed hours for sustainment
activities, Iron Bow explains that it noticed an error in its earlier proposal that the hours
for sustainment contract line item numbers 34 and 35 were based on a 12-month ordering
period and the hours for sustainment contract line item number 36 were based on a 24-
month ordering period. Iron Bow states that it adjusted the hours for sustainment in its
second final proposal revision by doubling the hours for contract line item number 36 and
that proper hours for the first final proposal revision would be equivalent. Iron Bow
concedes, however, that it did not explain this change in its second final proposal
revision. With regard to the agency’s findings regarding Iron Bow’s proposed *****
hours, Iron Bow argues that if the agency had a serious concern about Iron Bow’s
proposed ***** hours in design or integration, then the agency was required to raise that
concern with Iron Bow during discussions.
The court agrees with the government that Iron Bow is not likely to succeed on the
merits of its claim that the Marine Corps’ decision to rate Iron Bow’s technical approach
as “marginal” is not supported. Iron Bow received the “marginal” rating largely because
it changed the basis of estimate for its proposed price without updating its technical
approach in the second final proposal revision to explain the changes in hours. As the
government highlights in its response to Iron Bow’s motion, the solicitation required
23
offerors to “[e]nsure each section of the proposal adequately contains all the information
necessary for evaluation.” AR 1084. The solicitation required proposals to be “complete
and clear in all respects without the need for additional explanation or information,” and
“provide sufficient detail and scope to permit the Government to evaluate it with respect
to the evaluation factors specified in the Evaluation Criteria of this solicitation.” AR
1077. Offerors were directed not to use “general, vague, or unsubstantiated statements”
because such statements “prevent or render difficult the Government’s evaluation,” and
that an incomplete response, “without supporting narrative to describe approach or detail
compliance” would “rarely be acceptable.” Id. The solicitation likewise informed
offerors that the “Government will not assume that an Offeror possesses any capability,
understanding, and/or commitment that is not specifically delineated and supported in its
respective proposal.” Id. When Iron Bow changed the labor hours in its second final
proposal revision, Iron Bow was required under the terms of the solicitation to explain
that change in its technical approach and did not. In addition, Iron Bow did not indicate
that it intended to make changes to these hours in its discussions with the agency. AR
2988. The court agrees with the government that Iron Bow could not assume that the
agency would understand why Iron Bow made these changes. Id. The solicitation
required proposals to be complete, understandable, and provide sufficient support. Id.
Thus, Iron Bow is not likely to succeed in its challenge to the agency’s questioning Iron
Bow’s unexplained changes to its hours for facility assessment, design, and testing.
The court also agrees with the government that the discussions, which Iron Bow
concedes were “detailed,” Pl. Reply at 3, were not incomplete or misleading. According
24
to the technical evaluation report, Iron Bow’s proposal’s sustainment contract line items
“(0034-0036) were not identified as a concern during FPR-1 and not included as part of
the discussion process.” AR 3626. Therefore, the agency had no way of knowing why
the hours were ***** in Iron Bow’s second final proposal revision.
Finally, with regard to Iron Bow’s contention that the agency’s criticism of Iron
Bow’s Cyber Security engineering hours was irrational because the issue was not raised
in the discussions, the court finds that to the extent the matter should have been raised in
discussions the error is harmless given the fact that the agency’s serious concerns with
Iron Bow’s additional unexplained hours alone would likely support a marginal rating.
For all of these reasons the court finds that Iron Bow is not likely to succeed on
the merits of its challenge to the “marginal” technical rating it received.
3. Price evaluation
Iron Bow challenges the Marine Corps’ evaluation of its proposed price on the
grounds that the Marine Corps did not follow the solicitation’s instructions. Iron Bow
argues that the solicitation stated that the “[g]overnment intends to make a determination
of fair and reasonable pricing on the basis of adequate competition” but that the agency
did not compare Iron Bow’s price to the competition or the agency’s own estimates. In
addition, Iron Bow argues, the agency’s views on Iron Bow’s technical proposal are
irrelevant to determining whether Iron Bow’s cost proposal was “compatible with the
technical portion of the offer.” Iron Bow asserts that the agency determined that its
calculations were “complete and accurate.” AR 3650. Iron Bow argues that a price can
be compatible with a technical proposal even if that technical proposal is flawed. Finally,
25
Iron Bow argues that the agency’s evaluation of Iron Bow’s price was unjustified on the
grounds that the agency’s only basis for determining that Iron Bow’s price was not
reasonable was the agency’s allegedly irrational evaluation of Iron Bow’s technical
proposal. Iron Bow asserts that had the agency conducted a proper technical evaluation,
the agency would have determined that Iron Bow’s price was reasonable.
The court agrees with the government that Iron Bow is not likely to succeed on its
challenge to the Marine Corps’ price evaluation. The Marine Corps concluded that it
could not determine based on the information that Iron Bow provided whether Iron
Bow’s price was reasonable. The solicitation directed offerors to include in their price
volume a basis of estimate that “include[d] labor categories, labor descriptions, labor
hours, and travel” for each contract line item number. AR 1087. The solicitation
required offerors to provide sufficient information to allow the Government “to
determine that all aspects of the requirements have been considered in the proposal and
that the price is reasonable for the work required.” Id. The solicitation also required
offerors to explain in the price volume “[a]ny inconsistency between promised
performance, the technical proposal, identified personnel resources and cost/price.” Id.
Finally, as acknowledged by Iron Bow, the solicitation notified offerors that the
government would evaluate the proposed price and that in order to be deemed “fair and
reasonable,” the “proposed price to the Government must be compatible with the
technical portion of the offer.” AR 1096.
In this case, because Iron Bow did not update its technical approach to substantiate
the changes in contract line items, the agency was unable to determine the reasonableness
26
of the revised sustainment hours and how the revisions corresponded to Iron Bow’s
technical approach. AR 3626, 3649. The price evaluation team found that Iron Bow’s
second final proposal revision “contained excessive labor hours for Lifecycle and
Sustainment that were not supported in its technical approach; therefore, the total contract
price could not be determined reasonable.” AR 3651. The source selection authority also
found that Iron Bow’s proposed price could not be determined reasonable based on,
among other things “inconsistencies between the technical approach and the [basis of
effort].” AR 3686. In such circumstances, the court agrees with the government that Iron
Bow is not likely to succeed in showing that the Marine Corps’ conclusion that it could
not determine that Iron Bow’s price was reasonable was unsupported. 11
B. Iron Bow Cannot Show That It Will Suffer Irreparable Harm if
Preliminary Relief is not Granted.
To demonstrate an irreparable injury, a party must establish that without a
preliminary injunction it will suffer irreparable harm before a decision can be rendered on
the merits. See, e.g., Heritage of Am., LLC v. United States, 77 Fed. Cl. 66, 78 (2007).
“A party suffers irreparable harm when there is no adequate remedy at law.” Id. (citing
CW Gov’t Travel, Inc. v. United States, 61 Fed. Cl. 559, 575 (2004)). This court has
11
The government also argues that to the extent that Iron Bow is arguing that the solicitation
contained a patent ambiguity with respect to the requirement that an offeror’s “proposed price to
the Government must be compatible with the technical portion of the offer,” Iron Bow’s claim is
untimely. The government argues that Iron Bow knew the agency’s interpretation of this
requirement from two rounds of discussions and that Iron Bow failed to challenge it before bids
were due, thus waiving any such objection. See Blue & Gold Fleet, L.P. v. United States, 492
F.3d 1308, 1313-15 (Fed. Cir. 2007). Iron Bow does not respond to this argument in its reply
brief and the court does not read Iron Bow’s motion as continuing to assert an argument based on
ambiguity in the solicitation’s instructions or criteria for review of offerors’ price proposals.
27
found that “loss of an opportunity to compete constitutes irreparable harm.” E.g., Red
River Commc’ns, Inc. v. United States, 109 Fed. Cl. 497, 519 (2013) (citations omitted).
Iron Bow argues that without preliminary injunctive relief, it will suffer
irreparable harm because if the contract continues it will not be able to recover lost
profits it may have received on the contract. Iron Bow asserts that the loss of the contract
and the accompanying loss of revenue will be extremely detrimental to Iron Bow’s
business operations and reputation. Iron Bow further states that it has no adequate
remedy at law to be compensated for these losses, and thus, Iron Bow has and will
continue to suffer irreparable harm.
In response, the government argues that because the contract has a phased
approach and *****, Iron Bow will not lose all contract profits if it were to prevail in the
case. Specifically, the government explains that ACES is presently working on the
testing and pilot phases, *****. The government argues that the profits on this portion of
the contract are small and that if Iron Bow prevails it will be able to step into ACES
shoes and continue the contract without much disruption.
The court agrees with the government that Iron Bow has not established that
without a preliminary injunction it will suffer irreparable harm before a decision can be
rendered on the merits. In light of the government’s *****, the court has ample time to
resolve the case on the merits before Iron Bow would lose the opportunity to perform the
contract at issue. Mr. Garneski and Ms. Glenn state in their declarations that the contract
requires ACES to deliver a prototype of the computer hardware to a government
laboratory for testing and “accreditation and authorization” to operate on the Marine
28
Corps Enterprise Network. Garneski Decl. ¶10; Glenn Decl. ¶ 12(e). *****. Glenn
Decl. ¶ 12(e). This process *****. Id. In the event that the court sustains Iron Bow’s
protest the Marine Corps can furnish Iron Bow with any accreditation and related
documentation generated during this part of contract performance. Id.
Even after the interim accreditation process is complete, ACES cannot proceed
with a full system-wide roll out of the hardware until it successfully completes a pilot
phase involving installation of the hardware at a single location for further testing, *****.
Garneski Decl. ¶10; Glenn Decl. ¶ 12(f). The deployment of the hardware to the
remaining portions of the network will occur *****. Glenn Decl. ¶ 12(f). Therefore,
Iron Bow’s financial loss will be limited to whatever profits it might have received from
the delivery and installation of the prototype and the pilot program. Because Iron Bow
will not be foreclosed from performing the remainder of the contract should it prevail, it
has not demonstrated that it will suffer irreparable harm. 12
C. The Balance of Hardships and Public Interest Weigh Against an
Injunction.
As noted above, this court must “give due regard to the interests of national
defense and national security and the need for expeditious resolution of the action.” 28
U.S.C. § 1491(b)(3). This court also gives “great deference to the professional judgment
of military authorities concerning the relative importance of a particular military interest”
12
Because the court finds that Iron Bow will not suffer irreparable harm if preliminary relief is
not granted, the court does not reach the government’s argument that Iron Bow’s week-long
delay before filing this action after the GAO dismissed its protest undermines its pending
motion. See Eskridge Research Corp. v. United States, 92 Fed. Cl. 88, 99 (2010).
29
where the case involved “‘complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force,’ which are ‘essentially
professional military judgments.’” Winter, 555 U.S. at 24 (citations omitted).
Iron Bow argues that the government will suffer minimal or no harm while a
preliminary injunction is in place because performance of the contract has not yet started.
Iron Bow also notes that during the GAO protest, the Marine Corps did not attempt to
override the CICA “stay” provision, which Iron Bow asserts confirms the relative lack of
urgency. Iron Bow further contends that ACES’ financial interests are protected by the
various financial recovery provisions of the contract it currently holds. For example, Iron
Bow argues that the contract’s termination for convenience clause and ACES’ ability to
request an equitable adjustment pursuant to the stop work order and the changes clause, if
so warranted, protect ACES from financial harm stemming from the pendency of an
injunction. Iron Bow also notes that ACES, like Iron Bow, has waited years for this
contact. Iron Bow further argues that injunctive relief is in the public interest to prevent
the Marine Corps’ alleged violations from undermining the integrity of the competitive
procurement process and public confidence in that process.
The government argues that given the security issues associated with the contract,
the balance of harms and public interest weigh heavily in favor of denying preliminary
relief. The government states that delaying performance in this case would result in
significant risk to the integrity of the Marine Corps network. Relying on the urgent need
statement in the record and Mr. Garneski’s declaration, the government asserts that the
Marine Corps network is currently “exposed and vulnerable,” Garneski Decl. ¶ 7(c), and
30
until the network vulnerability is mitigated, “all commanders [are] at risk of mission
failure,” AR 4. This procurement was commenced as a result of the Marine Corps urgent
needs process, which requires a request from a commander for a capability “that is
critically needed by operating forces conducting combat or contingency operations” that,
if not provided, would likely “result in the inability of units to accomplish their missions
or risks increased probability of casualties and loss of life.” Garneski Decl. ¶ 5.b. The
request for an urgent need statement in this case explains that the Marine Corps networks
“*****.” AR 4. The request stated that “*****” connected to the network, and that
“*****.” Id.; see also Garneski Decl. ¶ 7(a)-(d). As Mr. Garneski explains in his
declaration, in offering this procurement competitively, the Marine Corps has, in effect,
disclosed the vulnerability of its network, and that time is of the essence in implementing
the solution under the contract. Garneski Decl. ¶ 7(a)-(d). The government contends that
in view of the foregoing, the equities and the public interest clearly balance in favor of
the government.
ACES also argues that enjoining contract performance during the pendency of this
protest will impose severe hardship upon ACES, which has already started performing
the contract. Craig T. Stephens, President and CEO of ACES, states in his declaration
that enjoining contract performance would deprive ACES of reimbursement of
substantial compensation for work that it has already performed, prevent ACES from
receiving ***** contract payments, and delay salary payments and the provision of
employee benefits to the employees that ACES has hired to perform the contract.
Stephens Decl. ¶¶ 4-6. Moreover, Mr. Stephens states, a delay in contract performance
31
could permanently reduce ACES’ profitability because the company from which ACES
will purchase equipment to be used for the contract *****. Stephens Decl. ¶ 7. The
expiration of the ***** could force ACES to purchase equipment using *****,
permanently adding millions of dollars in costs to ACES performance. Id.
The court agrees that the balance of equities weighs in favor of denying
preliminary injunctive relief. The Marine Corps network provides services to the entire
organization, including “*****.” Garneski Decl. ¶ 3. Mr. Garneski states in his
declaration that “[t]he implementation of this NACCR solution is extremely time
sensitive” and “[a]ny delay in the design and implementation of the NACCR solution
would be detrimental to the security of the [Marine Corps Enterprise Network].”
Garneski Decl. ¶ 7. Mr. Garneski explains that the Marine Corps Enterprise Network
“*****.” Id. at ¶ 7(a). The solicitation at issue in this case publicized the network’s
vulnerability. Id. at ¶ 7(b). According to Mr. Garneski, there are ***** and *****. Id.
at ¶¶ 7(c)-(d), 8. Mr. Garneksi states that “*****” and that the Marine Corps does not
*****. Id. at ¶ 7(c). According to Mr. Garneski, further delaying contract performance
“could lead to extremely negative cybersecurity consequences *****.” Id. at ¶ 10.
Ms. Glenn also explains in her declaration that “the awarded contract is designed
to ensure the NACCR solution is implemented in a methodical but rapid manner.” Glenn
Decl. ¶ 14. Ms. Glenn states that contract performance “is extremely time sensitive” and
that “any delay in the implementation . . . would be detrimental to national security.”
Glenn Decl. ¶ 18.
32
Given the national security concerns raised by these declarations the court finds
that the limited harm to Iron Bow does not outweigh the harm to the government. In
addition, with an expedited schedule on the merits the court is persuaded that any harm to
Iron Bow can be minimized. Finally, the court finds for the same reasons that the public
interest weighs in favor of denying preliminary injunctive relief.
V. CONCLUSION
For the reasons stated above, Iron Bow’s motion for a temporary restraining order
and preliminary injunction is DENIED.
The parties shall have until June 5, 2017 to propose a schedule for resolving the
case on the merits on an expedited basis.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
33
Iron Bow Technologies, LLC v. United States
Court: United States Court of Federal Claims
Date filed: 2017-06-01
Citations: 132 Fed. Cl. 346
Copy Citations