Iap Worldwide Servs. v. United States, 21-1570C

• Court: Court of Federal Claims
• Writing for the Court: MATTHEW H. SOLOMSON JUDGE
• Parties: IAP WORLDWIDE SERVICES, INC., Plaintiff, v. THE UNITED STATES, Defendant, and VECTRUS SYSTEMS CORPORATION, Defendant-Intervenor.
• Docket Number: 21-1570C
• Decision Date: 25 May 2022

IAP WORLDWIDE SERVICES, INC., Plaintiff,
v.
THE UNITED STATES, Defendant,

and VECTRUS SYSTEMS CORPORATION, Defendant-Intervenor.

No. 21-1570C

United States Court of Federal Claims

May 25, 2022

Kara L. Daniels, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Plaintiff. Of counsel were Thomas A. Pettit and Aime JH Joo.

Tanya B. Koenig, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for Defendant. With her on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Lieutenant Colonel Seth Ritzman, Contract Litigation & Intellectual Property Division, United States Army Legal Services Agency, Fort Belvoir, VA.

Adam K. Lasky, Seyfarth Shaw LLP, Seattle, WA, for Defendant-Intervenor. Of counsel were Edward V. Arnold, Stephanie B. Magnell, and Bret C. Marfut, Seyfarth Shaw LLP, Washington, D.C.

OPINION AND ORDER

MATTHEW H. SOLOMSON JUDGE

This Court previously concluded that Plaintiff, IAP Worldwide Services, Inc. ("IAP"), succeeded on the merits of Count I of its amended complaint. ECF No. 54; IAP Worldwide Servs., Inc. v. United States, ___Fed Cl. ___, 2022 WL 1021781, at *46 (2022).

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Specifically, the Court held that while Defendant, the United States, acting by and through the U.S. Department of the Army (the "Army"), as a general matter, has "discretion to decline to conduct discussions here," the Defense Federal Acquisition Regulation Supplement's ("DFARS") "presumption favoring discussions must be overcome with reasoned decision-making not reflected in the administrative record at issue." IAP Worldwide Servs., 2022 WL 1021781, at *39 (discussing DFARS 215.306). In essence, this Court concluded that the Army failed to properly apply DFARS 215.306 in deciding not to establish a competitive range and, thus, not to engage in discussions with offerors, including IAP. Id. at *35-39.

Because of the inadequate record regarding appropriate relief, however, the Court was "unprepared . . . to order the government to go back and redo its procurement process," or to otherwise decide the question of equitable or monetary relief absent "[a]dditional factual development." Id. at *50 (citing PGBA, LLC v. United States, 389 F.3d 1219, 1229 (Fed. Cir. 2004)). Having "reserve[d] the question of appropriate relief in this case pending further briefing," id. at *53, the Court ordered supplemental briefing and permitted the submission of additional factual declarations to support the parties' respective positions, ECF No. 52. The parties filed their respective supplemental briefs and accompanying declarations on April 11, 2022. ECF No. 55 ("Pl. Supp. Br."); ECF No. 56 ("Def. Supp. Br."); ECF No. 57 ("Intv. Supp. Br.").

The parties' positions could scarcely be further apart. IAP contends that it is entitled to injunctive relief "requir[ing] the Army to apply DFARS 215.306 correctly and proceed accordingly." Pl. Supp. Br. at 10. IAP also argues that this Court should award bid and proposal costs "in addition to the tailored injunctive relief requested." Id. The government opposes IAP across the board, arguing that "in balancing the hardships of both parties, the Court [should] deny IAP any injunctive, monetary, or other relief." Def. Supp. Br. at 1 (emphasis added). To the extent the Court "consider[s] a remand," the government urges "the Court [to] refrain from ordering any actions that would interfere with the Army's lawful discretion." Id. at 2.

Defendant-Intervenor, Vectrus Systems Corporation ("Vectrus"), similarly opposes injunctive relief, but suggests that

[a] "less drastic remedy" exists: the Court could stay judgment and remand (without injunction) pursuant to [Rule] 52.2(a) [of the Rules of the United States Court of Federal Claims ("RCFC")], for the [Army] to determine and document whether . . . discussions should be conducted under a proper

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application of DFARS 215.306, and[, ] if so[, ] whether IAP should be included in the competitive range

Intv. Supp. Br. at 5 (quoting Medline Indus., Inc v. United States, 155 Fed.Cl. 522, 541 (2021), and arguing that a remand would preserve the possibility of an injunction). Vectrus's view is that the propriety of an award of bid and proposal costs depends on the remand results; specifically, the recovery of such costs depends on whether IAP can demonstrate that it incurred "a needless expense." Id. at 10 (quoting A Squared Joint Venture v. United States, 149 Fed.Cl. 228, 232 (2020)).

Ultimately, the Court concludes that while injunctive relief is not warranted here, Vectrus's alternative suggestion of a limited remand (i.e., without an injunction) is appropriate given the relative equities. In that regard, a plaintiff's burden to justify a remand is considerably less demanding than what is necessary to support an injunction ordering the government to begin the procurement process entirely afresh, to conduct discussions, or otherwise precluding the government from proceeding with a challenged contract award. The Court orders no such injunctive relief at this time. The Court further concludes that, at least for now, IAP is not entitled to bid and proposal costs.

I. This Court Has Broad Discretion to Fashion Appropriate Equitable Relief in Procurement Action Cases Pursuant to 28 U.S.C. § 1491(b)

The parties' differing positions implicitly raise important questions about the nature of the equitable remedies at this Court's disposal in successful actions pursuant to 28 U.S.C. § 1491(b). Because the parties debate the availability and parameters of the relief this Court may (or should) order in this case, the Court first reviews its various equitable powers and the distinctions between them. Outside of 28 U.S.C. § 1491(b) actions and Contract Disputes Act (CDA) cases, see 41 U.S.C. §§ 7101-7109, ^[1] "[t]he Tucker Act does not generally confer jurisdiction for actions seeking declaratory or injunctive relief." Alvarado Hosp., LLC v. Price, 868 F.3d 983, 999 (Fed. Cir. 2017); see also Maine Cmty. Health Options v. United States, 590 U.S. ___, 140 S.Ct. 1308, 1330 (2020) ("[T]he Court of Federal Claims 'does not have the general equitable powers of a district court to grant

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prospective relief[.]'" (quoting Bowen v. Massachusetts, 487 U.S. 879, 905 (1988))).^[2]Nevertheless, there are two statutory provisions that provide this Court with equitable relief powers in actions filed pursuant to 28 U.S.C. § 1491(b).

First, the Tucker Act's Remand Statute^[3] generally provides that "[i]n any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just." 28 U.S.C. § 1491(a)(2) (emphasis added); see also RCFC 52.2 ("Remand a Case").^[4]

Second, in actions specifically challenging a government agency's procurement decision, this Court's power to order relief pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act (ADRA), Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874-75 (1996), is codified at 28 U.S.C. § 1491(b)(2): "To afford relief in such an action, the courts 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." 28 U.S.C. § 1491(b)(2) (emphasis added).

Although one might be tempted to read the remand language in § 1491(a) as applying only to claims filed pursuant to that subsection, § 1491(b)'s use of the broad statutory language of "any relief, "^[5] particularly when read in conjunction with § 1491(a)(2)'s express language of "any case within [the Court's] jurisdiction," leads this Court to conclude that our remand power extends to claims filed under § 1491(b). 28 U.S.C. § 1491(a)(2), (b)(2) (emphasis added); see also Harmonia Holdings Grp., LLC v. United

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States, 20 F.4th 759, 767 (Fed. Cir. 2021) ("The Court of Federal Claims has relatively broad authority under 28 U.S.C. § 1491(b)(2) to fashion a remedy . . . ."); DynCorp Int'l, LLC v. United States, 10 F.4th 1300, 1316 (Fed. Cir. 2021) (approving an agency's "price-reasonableness analysis on remand" where the agency "made new determinations" and still "declined to revisit the overall award"); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338-39 (Fed. Cir. 2001) (acknowledging the possibility of remand in "government procurement" cases pursuant to § 1491(b)).

Accordingly, the Tucker Act's plain language demonstrates that in an action pursuant to 28 U.S.C. § 1491(b), this Court may issue at least three types of nonmonetary, equitable relief^[6] orders (or a combination thereof); specifically, this Court may: (1) remand a matter to an agency for further consideration; (2) issue declaratory relief; and/or (3) issue injunctive relief. Those are distinct equitable relief mechanisms^[7] - with varying purposes, effects, and requirements - but the lines between them are incapable of being drawn with scientific precision. This Court thus explains each form of relief, in reverse order, and then considers how they should be applied in this case.

A. The Court's Authority to Issue Injunctive Relief

1. General Principles and Parameters

"[A]n injunction either mandates or prohibits particular conduct." PGBA, 389 F.3d at 1228 n.6 (citing Perez v. Ledesma, 401 U.S. 82, 124 (1971)); see also Birmingham Fire Fighters

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Ass'n 117 v. City of Birmingham, 603 F.3d 1248, 1254 (11th Cir. 2010) ("[T]he classic definition of an injunction" is "a clear and understandable directive from the [trial] court, . . . enforceable through contempt proceedings," giving "some or all of the substantive relief sought in the complaint." (quoting Sierra Club v. Van Antwerp, 526...