In the United States Court of Federal Claims No. 17-835C (Filed: January 28, 2020)* *Opinion originally filed under seal on January 22, 2020
) A SQUARED JOINT VENTURE, ) ) Plaintiff, ) Preliminary Injunction; Motions for ) Reconsideration; RCFC 59; RCFC 60 v. ) ) THE UNITED STATES, ) ) Defendant. ) )
Joseph P. Dirik, Dallas, TX, for plaintiff.
Borislav Kushnir, Civil Division, United States Department of Justice, Washington, D.C., with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, for defendant. Jerry L. Seemann, National Aeronautics & Space Administration, Office of Chief Counsel, Washington, D.C., of counsel.
OPINION
FIRESTONE, Senior Judge.
After protracted litigation before this court and the Government Accountability
Office by this plaintiff and other offerors, this court on November 18, 2019 denied
plaintiff A Squared Joint Venture’s (A2JV) motion for judgment on the administrative
record, which protested the National Aeronautics and Space Administration’s (“NASA”
or “agency”) decision to cancel a procurement for acquisition and business support
services at the Marshall Space Flight Center (MSFC). On November 19, 2019, judgment
was entered in favor of defendant the United States (government) under Rule 58 of the Rules of the United States Court of Federal Claims (RCFC). On December 10, 2019
A2JV filed a motion for clarification or, in the alternative, for reconsideration, requesting
that the court limit the scope of the judgment so that the court may conduct further
proceedings on A2JV’s claims for bid preparation costs and other relief.
A2JV also seeks reconsideration, under RCFC 59, of the court’s opinion and order
upholding NASA’s cancellation decision and has filed a motion for preliminary
injunction pending the court’s decision on that reconsideration motion. The motion for
preliminary injunction requests that the court enjoin NASA and its replacement
contractors from transitioning work away from the incumbent contractor, Al-Razaq
Computer Services, one of A2JV’s principals. Although A2JV requests a hearing on its
motions, Reply to Pl.’s Mot. for Prelim. Inj. at 1 n.1, ECF No. 168, the court has
reviewed the parties’ filings and has determined that oral argument is unnecessary, see
Hymas v. United States, 141 Fed. Cl. 735, 740-41 (2019) (holding that the court has
discretion over whether to hold oral argument, citing cases).
For the reasons discussed below, A2JV’s December 17, 2019 motion for
reconsideration is DENIED and its motion for preliminary injunction is DENIED AS
MOOT. However, because the court concludes based on the record in this case that
A2JV may pursue its claims for bid preparation and proposal costs, A2JV’s December
10, 2019 motion for clarification, or, in the alternative, reconsideration is GRANTED.
The judgment entered on November 19, 2019 is VACATED. The parties are directed to
file a joint status report proposing further proceedings consistent with this opinion, as set
forth below.
2 I. BACKGROUND
The background of this case is set forth in A Squared Joint Venture v. United
States (A2JV), 145 Fed. Cl. 676 (2019), and will not be repeated at length. As relevant
here, this case began as a challenge to NASA’s decision to disqualify A2JV’s proposal
from a competition for acquisition and business support services (ABSS2 procurement)
due to a potential significant organizational conflict of interest (OCI). See Compl., ECF
No. 1. This court eventually determined that NASA did not establish the existence of
potential significant OCI based on Al Razaq’s incumbent status and asked the parties to
brief the issue of appropriate injunctive relief. See Order Granting in Part and Denying in
Part Reconsideration of Second Remand Order at 12, ECF No. 113.
Rather than proceed with the ABSS2 procurement, on March 12, 2019, NASA
decided to cancel the procurement. A2JV, 145 Fed. Cl. at 679. NASA’s cancellation
decision was based on NASA’s long-term strategy of agency-wide contract
centralization, the delay in awarding this center-specific contract for the MSFC, and the
inability to procure only some of the services originally included in the ABSS2
competition. Id. at 679-83. In the cancellation decision, NASA’s contracting officer
identified several short-term options to fulfill MSFC’s needs until an agency-wide
contract is finalized, including continued performance by the incumbent Al-Razaq and
another contracting vehicle managed at the Johnson Space Center (JSC Contract). Id.
A2JV filed a third amended complaint on April 15, 2019, challenging NASA’s
cancellation decision, but also including its prior claims regarding the disqualification
decision. See Third Am. Compl., ECF No. 130. The government filed a motion to
3 dismiss in part, arguing that A2JV’s prayers for relief related to the disqualification
decision and the cancelled ABSS2 procurement (the first, second, third, eighth, and ninth
prayers for relief) were moot and that A2JV’s claim regarding any anticipated post-
cancellation actions by NASA (the seventh prayer for relief) was not ripe. See A Squared
Joint Venture v. United States, No. 17-835C, 2019 WL 2591205, at *1 (Fed. Cl. June 24,
2019). The remaining claims challenged NASA’s cancellation decision (the fourth, fifth,
and sixth prayers for relief) and sought bid preparation and proposal costs, attorney’s fees
and costs, and “such other relief as the Court may deem just and proper” (the tenth,
eleventh, and twelfth prayers for relief). Third Am. Compl. at 31-32. On June 24, 2019,
the court declined to dismiss A2JV’s claims for declaratory relief regarding NASA’s
decision to disqualify A2JV from the now-cancelled procurement (the first and second
prayers for relief) “because A2JV still has a claim for bid preparation costs.” A Squared
Joint Venture, 2019 WL 2591205, at *3. The court dismissed as moot the third, eighth,
and ninth prayers for relief, and dismissed as unripe the seventh prayer for relief. Id.
Therefore, what remained before the court were A2JV’s claims for declaratory relief
regarding the disqualification decision, A2JV’s claims regarding the cancellation
decision, and A2JV’s claims for bid preparation costs, attorney’s fees, and other relief.
The court then issued a briefing schedule on motions for judgment on the
administrative record that would “resolve the outstanding issues regarding cancellation of
the ABSS2 procurement.” Order at 1, ECF No. 141. In its briefs, A2JV claimed that
NASA failed to consider various “important aspects of the problem” before cancelling
the procurement, including the availability and the suitability of the JSC Contract. See
4 Pl.’s Mot. for J. on the Admin. Record at 12-15, 17-23, ECF No. 145; Pl.’s Resp. &
Reply at 3 & n.3, ECF No. 149.
On November 18, 2019, the court denied A2JV’s motion for judgment on the
administrative record and granted the government’s cross motion. A2JV, 145 Fed. Cl. at
678. The court determined that NASA did not fail to consider important aspects of the
cancellation decision. Id. at 683-84. The court rejected A2JV’s claims regarding the JSC
Contract, holding that “A2JV’s challenges regarding the possible use of the JSC Contract
after exhausting Al-Razaq’s ABSS1 contract are without merit.” Id. at 684. The court
directed that judgment be entered “consistent with this opinion.” Id. at 685. The Clerk of
the Court entered judgment in favor of the government on November 19, 2019 under
RCFC 58. Judgment, ECF No. 154. The judgment did not address costs. Id.
On December 10, 2019, A2JV filed a motion for clarification or, in the alternative,
for reconsideration of the scope of the court’s November 18, 2019 opinion and order and
November 19, 2019 judgment, pursuant to RCFC 59 and 60. A2JV argues that because
its first, second, tenth, eleventh and twelfth prayers for relief in the third amended
complaint are still pending before the court, the court should clarify or amend its ruling to
permit the parties to litigate these outstanding issues. Pl.’s Mot. for Clarification at 1-2,
ECF No. 158. A2JV contends that the most recent round of cross motions for judgment
on the administrative record were limited to NASA’s cancellation decision, and that the
record in this case, including the hearing transcript of and the court’s decision on the
government’s motion for partial dismissal, confirms that A2JV’s remaining challenges
regarding the disqualification decision would be dealt with after the cancellation
5 challenge was resolved. Id. at 3-5. If the court did intend to resolve all of the pending
claims in this case, A2JV argues, then the court should reconsider its decision and permit
A2JV to litigate its remaining claims. Id. at 5-6.
On December 17, 2019, A2JV filed a second motion for reconsideration under
RCFC 59, arguing that the court failed to rule on A2JV’s arguments that NASA did not
(1) provide a reasoned analysis of NASA’s policy change to use the JSC Contract as a
bridge for business support services, rather than Al-Razaq’s incumbent contract, (2)
consider potential OCIs resulting from the proposed use of the JSC Contract as a short-
term strategy as required by the Federal Acquisition Regulation (FAR), and (3) consider
the requirements of the Competition in Contracting Act (CICA) implicated by the
proposed use of the JSC Contract (i.e., whether a competitive procurement would be
required). Pl.’s Mot. for Recons. at 2-9, ECF No. 160.
On December 22, 2019, A2JV filed a motion for a preliminary injunction1
enjoining NASA from engaging in any activities transitioning the subject acquisition and
business support services to other contractors until the court ruled on its December 17,
2019 motion for reconsideration. A2JV argues that it is likely to succeed on the merits of
its December 17, 2019 reconsideration motion. Pl.’s Mot. for Prelim. Inj. at 6-7, ECF
No. 162. A2JV further argues that it will suffer irreparable harm if NASA transitions the
acquisition and business support services away from its partner Al-Razaq before the court
rules on the motion for reconsideration because it is possible that the now-cancelled
1 A2JV also filed a request for a temporary restraining order, which the court denied. See Order, ECF No. 163. 6 ABSS2 procurement will be reinstated and A2JV’s ABSS2 proposal uses Al-Razaq’s
work force. Id. at 5-6. Finally, A2JV argues that the balance of harms and the public
interest weigh in its favor. Id. at 7-9.
On January 6, 2020, the government filed a combined response to A2JV’s motions
for clarification and reconsideration. The government’s combined response argues that
the court should deny A2JV’s motion for clarification or reconsideration because A2JV
has waived any claim to bid preparation and proposal costs by failing to brief that issue in
the most recent round of motions for judgment on the administrative record or earlier.
Def.’s Combined Resp. at 5-7, ECF No. 164. The government further argues that A2JV’s
second motion for reconsideration should be denied because A2JV merely relitigates
arguments that it has previously made and lost and that, even if they were considered,
A2JV’s arguments are baseless. Id. at 7-11.
On January 6, 2020, the government also filed a response to A2JV’s motion for
preliminary injunction. The government argues that the motion is procedurally improper
because the court has already resolved the merits of the case. Def.’s Resp. to Pl.’s Mot.
for Prelim. Inj. at 4, ECF No. 165. The government contends that A2JV is unlikely to
succeed on the merits of arguments it has made and lost. Id. at 4-6. The government
further argues that A2JV cannot establish that it will be irreparably harmed by NASA’s
transition to other contracting vehicles because that argument presupposes that NASA
must reinstate the ABSS2 procurement, which is not a remedy available to A2JV. Id. at
6-8. Moreover, the government argues, the mere loss of employees is not the type of
irreparable injury that mandates the imposition of a preliminary injunction. Id. at 8.
7 Finally, the government contends that the balance of hardships and the public interest
weigh overwhelmingly in the government’s favor. Id. at 9-10.
In reply in support of its motion for clarification, A2JV argues that it has not
waived its right to seek bid preparation costs because the record in this case demonstrates
that the most recent motions for judgment on the administrative record and the court’s
resulting opinion and order were limited to the cancellation issue. Reply to Pl.’s Mot. for
Clarification at 1-3, ECF No. 167. In its reply in support of its motion for
reconsideration, A2JV reiterates that the court failed to rule on its arguments, but that
even if the court did implicitly rule on them, the court must reconsider its decision based
on “manifest injustice and error.” Reply to Pl.’s Mot. for Recons. at 1-3, ECF No. 166.
Finally, A2JV in support of its motion for preliminary injunction replies by reiterating its
prior arguments and adding that a preliminary injunction can issue at this stage of a bid
protest. Reply to Pl.’s Mot. for Prelim. Inj. at 1-5.
II. DISCUSSION
A. A2JV’s December 17, 2019 Motion for Reconsideration is Denied, and A2JV’s Motion for Preliminary Injunction is Denied as Moot
The court turns first to A2JV’s December 17, 2019 RCFC 59 motion for
reconsideration of the court’s November 18, 2019 opinion and order upholding the
ABSS2 cancellation. “The three primary grounds that justify reconsideration are: (1) an
intervening change in the controlling law; (2) the availability of new evidence; and (3)
the need to correct clear error or prevent manifest injustice.” Del. Valley Floral Grp.,
Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010) (internal quotation
8 marks and citation omitted). Where a party seeks reconsideration on the ground of
manifest injustice, it cannot prevail unless it demonstrates that any injustice is “apparent
to the point of being almost indisputable.” Ideker Farms, Inc. v. United States, 142 Fed.
Cl. 222, 226 (2019) (internal quotation marks and citation omitted). Such motions “must
be supported by a showing of extraordinary circumstances which justify relief,” and
“[c]ourts must address [them] with exceptional care.” Castillo v. United States, 140 Fed.
Cl. 590, 599 (2018) (internal quotation marks and citations omitted).
A motion for reconsideration “is not intended to permit a party to retry its case
when it previously was afforded a full and fair opportunity to do so.” Id. at 598. The
motion “should not be used as a vehicle to present authorities available at the time of the
first decision or to reiterate arguments previously made.” Del. Valley Floral Grp., 597
F.3d at 1384 (internal quotation marks and citation omitted). A court “will not grant a
motion for reconsideration if the movant merely reasserts arguments previously made all
of which were carefully considered by the court.” Ideker, 142 Fed. Cl. at 226 (internal
quotation marks, alterations, and citation omitted).
Applying these standards, the court must deny A2JV’s December 17, 2019 motion
for reconsideration. In that motion, A2JV argues that NASA cancelled the ABSS2
procurement in part because of its decision to use the JSC Contract as a short-term
solution at MSFC. Pl.’s Mot. for Recons. at 3-4. A2JV claims that NASA did so without
considering three “important aspects of the problem” with using the JSC Contract: (1) a
“policy change” from using the incumbent contract, (2) potential OCI issues in using the
JSC Contract, and (3) potential CICA issues in using the JSC Contract. Id. A2JV argues
9 that the court, in turn, did not “carefully consider” these arguments in ruling on the
parties’ cross motions for judgment on the administrative record and that, therefore,
reconsideration is appropriate on the ground of manifest error and injustice. Id. at 3-9.
As A2JV itself recognizes, A2JV already raised these three arguments in its
motion for judgment on the administrative record. Id. at 2 (noting “these three arguments
were made by Plaintiff and before the Court”). A2JV nevertheless contends that
reconsideration is warranted because the court did not “carefully consider” these three
matters. Id. at 3-9. The court disagrees. In its November 18, 2019 decision, under the
subheading “[The Contracting Officer] Did Not Fail to Consider Important Aspects of the
Cancellation Decision,” the court explained that the JSC Contract was one post-
cancellation option available to NASA, and that the contracting officer “was not required
to address the ‘pros and cons’ of various [post-cancellation] procurement choices before
reaching his cancellation decision.” A2JV, 145 Fed. Cl. at 683-84. Rather, the court
held, the contracting officer “was required only to set forth a general approach to a new
acquisition plan, which he did.” Id. at 684. The court further explained that the
contracting officer “made a technical judgment about MSFC’s needs when he concluded
that the JSC contract was available” as a short-term solution and that, pursuant to relevant
case law, the court would not “substitute its judgment for that of” the contracting officer.
Id. Moreover, as explained by the court, “which post-cancellation procurement
mechanism is best may be challenged when a specific procurement mechanism is
implemented by NASA.” Id. Although it did not specifically identify A2JV’s three
arguments, the court’s holding fully addressed and rejected all of A2JV’s arguments
10 regarding the JSC Contract. Reconsideration based on these arguments is therefore
denied. See Del. Valley Floral Grp., 597 F.3d at 1384.
A2JV argues that even if the court indirectly ruled on the three arguments it
identifies in its motion for reconsideration, the court erred by stating that A2JV “had
identified only one important aspect of the problem based on substantive law” because
A2JV had also identified the APA, the FAR, and CICA as substantive areas of law.
Reply to Pl.’s Mot. for Recons. at 3, 6. It is true that, in its decision, the court held that
A2JV had identified only one possible source of substantive law – an overview of
strategic sourcing within NASA’s procurement office’s implementation plan – that the
contracting officer was potentially required to consider before cancelling the
procurement. A2JV, 145 Fed. Cl. at 683-84. The court held that the contracting officer
was not required to address the issues in the implementation plan before cancelling the
procurement. Id. But the court then went on to hold, as described above, that,
“[c]ontrary to A2JV’s argument,” the contracting officer also considered all he was
required to consider in connection with the JSC Contract in his cancellation decision. Id.
at 684. The court considered and rejected A2JV’s arguments regarding other sources of
substantive law and the decision to use the JSC Contract when it made this holding.
A2JV has therefore failed to demonstrate “indisputable” error or injustice based solely on
the court’s statement that A2JV identified only one possible source of substantive law
that the contracting officer was required to consider. Ideker, 142 Fed. Cl. at 226.
Because A2JV’s motion for reconsideration simply reiterates arguments already made
and lost, reconsideration is not warranted. Id.
11 Turning next to A2JV’s motion for preliminary injunction, that motion seeks a
preliminary injunction pending the court’s decision on A2JV’s December 17, 2019
motion for reconsideration. Pl.’s Mot. for Prelim. Inj. at 1, 6-7. Because the court has
denied A2JV’s December 17, 2019 motion for reconsideration, A2JV’s motion for
preliminary injunction is denied as moot.
B. A2JV’s Motion for Clarification, or, in the Alternative, Reconsideration is Granted
A2JV also moves for clarification or reconsideration under RCFC 60 and 59
regarding the scope of the court’s November 18, 2019 opinion and order and its
November 19, 2019 judgment under RCFC 58. A2JV argues that the court erred in
issuing a final judgment in this case because its claims for bid preparation costs and other
relief related to NASA’s pre-cancellation decision disqualifying A2JV’s ABSS2 proposal
are still pending. Pl.’s Mot. for Clarification at 1-2. As such, A2JV argues that it is
entitled to clarification of the scope of the court’s opinion and judgment, or
reconsideration under RCFC 60(a) or 60(b) (presumably for “mistake,” see Pl.’s Mot. for
Clarification at 5; Reply to Pl.’s Mot. for Clarification at 1 n.2), or RCFC 59.
After considering the parties’ arguments and the record in this case, the court has
determined that it erred in issuing judgment under RCFC 58 following the court’s
November 18, 2019 opinion and order because A2JV’s claims for bid preparation and
proposal costs in connection with NASA’s disqualification decision were still pending at
the time the court issued that decision. When this court granted in part the government’s
motion to partially dismiss the third amended complaint, the court declined to dismiss the
12 first and second prayers for relief, in which A2JV sought a declaration that NASA’s
decision to disqualify ASJV’s proposal from the ABSS2 competition was arbitrary and
capricious. A Squared Joint Venture, 2019 WL 2591205, at *3. The court concluded that
dismissal was premature because at that time “A2JV still [had] a claim for bid
preparation costs.” Id. The court went on to state, “Put another way, the cancellation has
not ‘completely and irrevocably eradicated the effects’ of NASA’s disqualification
decision.” Id. The court therefore intended that A2JV be permitted to pursue bid
preparation costs based on the disqualification decision.
The record also reflects that the court intended that A2JV be permitted to pursue
bid preparation costs following the court’s decision on the cancellation issue. At the June
17, 2019 hearing on the government’s motion for partial dismissal, counsel for the
government suggested that “once the Court resolves the cancellation question and issues
a final judgment, at that point we can certainly discuss whether bid protest costs are
appropriate.” June 17, 2019 Hr’g Tr. 6:17-20, ECF No. 147. The court also suggested
that “any relief that’s been granted with regard to the initial decision to reject [A2JV] as
arbitrary and capricious, that that still . . . remains viable . . . to be dealt with after we rule
on the – whether or not the cancellation decision is justified.” Id. at 18:6-11. The court
further stated that following its ruling on the motion to dismiss the parties would brief the
“cancellation decision,” but did not mention bid preparation costs. Id. at 18:16-18, 22-24.
The briefing order on the most recent motions for judgment on the administrative
record also indicates that those motions would deal with the cancellation decision only.
That order stated that briefing would “resolve the outstanding issues regarding
13 cancellation of the ABSS2 procurement.” Order at 1, ECF No. 141. Thus, considering
the record of this case as a whole, the court concludes that A2JV’s claims for bid
preparation costs, attorney’s fees, and other relief under the first, second, tenth, eleventh,
and twelfth prayers for relief in the third amended complaint are still before the court. To
the extent the November 19, 2019 judgment is a “final” judgment, that final judgment
was entered in error. A2JV is therefore entitled to relief under RCFC 60. See CNA Corp.
v. United States, 83 Fed. Cl. 1, 7-8 (2008) (allowing protestor to pursue bid preparation
costs following judgment, noting that RCFC 60(a) and 60(b) permit the court to provide
relief from judgment based on “[c]lerical mistakes” or “mistake” of the court).
The government argues that A2JV has waived its claim for bid preparation costs
because it did not brief its request for bid preparation costs during the most recent round
of motions for judgment on the administrative record or earlier. According to the
government, A2JV “knowingly waived” any claim to bid preparation and proposal costs
by choosing not to do so. Def.’s Combined Resp. at 6. For the reasons discussed above,
the court disagrees. Based on the court’s prior decision and orders, A2JV reasonably did
not brief the issue of bid preparation costs in connection with the initial disqualification
decision and did not knowingly waive the issue. A2JV’s motion for clarification or, in
the alternative, reconsideration is therefore granted. Because the court erred in issuing
the November 19, 2019 judgment, the court will vacate that judgment in order to clarify
the record to reflect that a judgment has not been entered in this case.2 As discussed
above, however, the court has denied A2JV’s motion for reconsideration of the court’s
2 The court did not intend to issue a judgment under RCFC 54(b) and does not do so now. 14 November 18, 2019 order and opinion regarding the agency’s cancellation decision.
Although the November 19, 2019 judgment is vacated to clarify the record, the
November 18, 2019 order and opinion still stand.
III. CONCLUSION
For the foregoing reasons, A2JV’s December 17, 2019 motion for reconsideration
is DENIED. A2JV’s December 22, 2019 motion for preliminary injunction is DENIED
AS MOOT. A2JV’s December 10, 2019 motion for clarification or, in the alternative,
reconsideration is GRANTED. The Clerk is directed to VACATE the judgment issued
on November 19, 2019. The parties shall submit a joint status report by January 31,
2020, setting forth a schedule to govern further proceedings in this litigation. Those
proceedings shall be limited to the bid preparation and proposal costs and attorney’s fees
and other costs claims not dismissed or disposed of by the court, arising under the first,
second, tenth, eleventh, and twelfth prayers for relief in the third amended complaint.
IT IS SO ORDERED.
s/Nancy B. Firestone NANCY B. FIRESTONE Senior Judge